An Overview of the new Telecommuting Act (Work from Home Law)
A new law recently enacted by the Philippine Congress legitimizes telecommuting or work-from-home employment arrangements and ensures a legal framework for the rights of telecommuting workers.
The New Telecommuting Act (Republic Act No. 11165) also referred to as Work From Home Law was signed into law last December 20, 2018. The new law seeks protect the rights of workers and promote their welfare, in light of new and alternative avenues enabled by the latest communications technologies that allow employees to perform their work from their homes. The new law is consistent with the state policy to affirm labor as a primary social economic force
According to Global Analytics Workplace reports, as of 2016, almost 4.3 million U.S. employees or 3.2% of its workforce work from home at least half the time, or an increase of 40% U.S. employers have offered flexible working arrangements than they did in 2010. The Philippines is no stranger to the telecommuting set-up. The passage of the telecommuting law thus serves to recognize one of the emerging trends in the workplace – telecommuting and other flexible working arrangements.
What is Telecommuting?
As used in the Act, the term “telecommuting” refers to a work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies.
Telecommuting arrangements were earlier utilized by freelancers who can set up their work stations at almost any cafe and co-working establishments. Soon enough, full-time employees were also able to opt for telecommuting upon request from their superiors. Work from home increasingly became a viable option and norm in the daily context of Metro Manila heavily burdened by traffic gridlock.
Even before the law was enacted, some Philippine companies have implemented telecommuting programs designed by their Human Resources Department. Meralco has a successful telecommuting model which was implemented at the discretion of department managers. It was conducted with supervision and strict guidelines which include rules on who may be eligible for the program and how employees can effectively avail of the program.
Fair treatment of employees
With the existence of telecommuting programs in Philippine companies, employees and employers needed a legal framework to institutionalize practices and provide security measures to protect the welfare of both parties.
The law mandates employers to ensure that its telecommuting employees are given the same treatment as that of comparable employees working at the employer’s premises. Thus, all telecommuting employees shall be able to:
• Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws and collective bargaining agreements;
• Have the right to rest periods, regular holidays, and special nonworking holidays;
• Have the same or equivalent workload and performance standards as those of comparable workers at the employer’s premises;
• Have the same access to training and career development opportunities as those of comparable workers at the employer’s premises, and be subject to the same appraisal policies covering these workers;
• Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting; and
• Have the same collective rights as the workers at the employer’s premises, and shall not be barred from communicating with workers’ representatives.
To promote equality and fairness for telecommuting employees, the law further provides that employers must ensure that measures are taken to prevent the telecommuting employee from being isolated from the rest of the working community in the company, by giving the telecommuting employee the opportunity to meet with colleagues on a regular basis, and allowing access to company information.
The parties to a telecommuting work arrangement shall be primarily responsible for the administration of any telecommuting program. When differences in interpretation arise, the following guidelines shall be observed:
• The differences shall be treated as grievances under the applicable grievance mechanism of the company.
• If there is no grievance mechanism or if this mechanism is inadequate, the grievance shall be referred to the regional office of the Department of Labor and Employment (DOLE) which has jurisdiction over the workplace for conciliation.
• To facilitate the resolution of grievances, employers shall keep and maintain, as part of their records, the documents proving that the telecommuting work arrangement was voluntarily adopted.
Availing the Telecommuting program
Under the new law, employers in the private sector may offer a telecommuting program to its employees on a voluntary basis, and upon such terms and conditions as they may mutually agree upon. These terms and conditions shall not be less that the minimum labor standards set by the Labor Code, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. The employer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions of the telecommuting program, and the responsibilities of the employee.
The Act requires a telecommuting pilot to must be established for select industries and maintained by the DOLE for not more than three (3) years. The DOLE will also be responsible for baselining, scoping and profiling research work prior to implementation, regular quarterly monitoring and evaluation.
Suppletory Effect of the Data Privacy Act
The law also mandates employers to implement appropriate measures to ensure the protection of data used and processed by the telecommuting employee for professional purposes. Employers are also required to inform their telecommuting employees of all relevant laws, and company rules concerning data protection. At the same time, all telecommuting employees shall ensure that confidential and proprietary information are protected at all times. The requirement of these data protection measures is consonant with the Data Privacy Act of 2013, which is given suppletory effect in relation to the Telecommuting Act.
A look at some of the common online home-based jobs recorded by the Department of Labor and Employment – Bureau of Local Employment reveal the wide variety of employees who are already performing their tasks from their homes. These jobs include encoder/transcriptionists, online teachers, internet entrepreneurs/online sellers, customer service assistants, virtual assistants, web developer/programmers, online writer/editors, those who engage in online trading on the stock market or in online gaming. With the implementation of the Telecommuting Act, employees in industries such as these, who have been relying on a work from home set-up, could gain a stronger voice in ensuring their sustainability, employee benefits, and other logistical support mechanisms. At the same time, industries can also maximize the implementation of telecommuting programs to their advantage to secure business productivity produced by such a work set-up.
A new wave of industries can potentially thrive with security measures and legal safeguards now in place because of the Telecommuting Act. The new law could lead to additional pressure on telco providers to improve their services due to increased demand from industries with telecommuting workers who rely on stable internet connections to perform their tasks from home. The Implementing Rules to the Telecommuting Act, which are to be drafted by the Secretary of Labor and Employment, would supply further clarity on the implementation of the law, including on the data protection measures that employers and employees would need to adopt. Still, with the ultimate goal of providing an avenue for productivity and means to work off-site, the Telecommuting Act can be a game-changer for several significant industries that have already integrated the latest advances in communications technology into their own business models and processes.