Legal Issues vis-à-vis Work from Home Arrangements or Telecommuting

With parts of the country still placed in varying degrees of community quarantine several businesses resorted to Work from Home or Telecommuting arrangements with their employees to continue their operations. Telecommuting of Work from Home is 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 [1]. This type of arrangement being a relatively novel concept in Philippine law some legal issues may arise. Currently one piece of legislation governs this type of arrangement, Republic Act no. 11165 or the Telecommuting Act.

 

Duties of the Employer under the Telecommuting Act

Through the Telecommuting Act the State affirms the policy that labor is the primary socio-economic force and it shall protect the rights of workers and promote their welfare, especially in the light of technological development that has opened new and alternative means for employees to carry out their work [2]. 

 

The salient provision of the Telecommuting Act provides for “Fair Treatment” whereby the employer shall ensure that the telecommuting employees are given the same treatment as that of comparable employees working at the employer’s premises [3]. This entails that a telecommuting employee shall receive a rate of pay including overtime and night shift differential and other monetary benefits under the law or a collective bargaining agreement. They shall also have the right to rest periods, regular holidays and special non-working days. They shall receive the same workload and performance standards. They must be given the same access to training and career development opportunities. They must also be given training on the technical equipment at their disposal to carry out the telecommuting arrangement. The employer must also ensure that measures are taken to prevent the telecommuting employees from being isolated from the rest of the workforce. 

 

The Department of Labor and Employment (DOLE) later issued DO-202-19 as the Implementing Rules and Regulations of RA 11165. The Implementing Rules provide that an employer may offer a telecommuting program to employees on a voluntary basis or as a result of collective bargaining, such program must have the following provisions; eligibility; applicable code of conduct and performance evaluation; alternative workplaces; use and cost of equipment; work days and hours; conditions of employment; non-diminution of benefits; occupational health and safety; observation of data privacy policy; dispute settlement and termination of work arrangement [4].

 

Employers are also required to notify the DOLE on the adoption of a telecommuting work arrangement by accomplishing a form and submitting the same to the nearest DOLE field or provincial office having jurisdiction over the area of the principal office of the employer. In case the employer has branches outside the region of its principal office each branch must also notify the DOLE through the field or provincial office with jurisdiction over their area [5]. Any pre-existing agreements prior to the effectivity of the Act shall also be subject to the notice requirement [6].

 

Where Legal Issues May Arise

The provisions of the Telecommuting Act seek to address possible legal issues that a work from home arrangement may give rise to. The primary consideration of the law is to give fair treatment between employees who work from home and who work at the employer’s premises. This is achieved by the agreement entered into by the employer and employee, and by the notice requirement to the DOLE in case the employer enters into a telecommuting arrangement with the employees.

 

The Act ensures that the labor standards provided for by the Labor Code shall apply to telecommuting employees. In case of disputes arising from the agreement the Act also provides for the following guidelines, first the grievances must be resolved by the grievance mechanism of the company, if no mechanism is available or is inadequate the regional office of the DOLE which has jurisdiction shall handle the grievance. To facilitate the resolution of grievances the employer is required to maintain documents and records to prove that the telecommuting agreement was voluntarily adopted [7].

 

One specific legal issue mentioned by the Telecommuting Act is data privacy. The act specifically provides that the employer shall be responsible for taking the appropriate measures to ensure the protection of data used and processed by the telecommuting employee for professional purposes. Telecommuting employees must be informed of relevant laws and company rules on the matter. The Act also provides for the suppletory application of the Data Privacy Act [8]. While the DO-202-19 provides for measures to ensure data protection like disabling hardware, Universal Serial Bus access and external cloud-storage [9].

 

Issues may arise due to the changes caused by the pandemic with a significant number of businesses resorting to work from home arrangements. The Telecommuting Act provides for the standards which the employers must follow and a grievance mechanism which employees may resort to. The DOLE is also tasked to ensure that these agreements follow the fair treatment standard provided for by the law. 

 

Does the Telecommuting Act cover Independent Contractors?

With the increased use of social media in recent years the companies running these websites began resorting to Content Moderators in order to maintain the content found in their websites. Several reports have shown that these moderators have significantly lower pay compared to employees of the social media website, along with this they are exposed to explicit content, with some of them developing mental illnesses due to the exposure. More often than not content moderators work in a telecommuting arrangement with their employer. However the issue in this situation is if they are employees within the definition of the Labor Code.

 

Being able to determine whether these content moderators are employees is important as the way the Telecommuting Act is written its provisions would only apply when there is an Employer-Employee Relationship existing. Hence if content moderators are found to be independent contractors they would not be able to receive the same benefits afforded to employees of a business. 

 

[1] DO-202-19 Sec. 2

[2] RA 11165 Sec. 2

[3] Sec. 5

[4] DO-202-19 Sec. 3

[5] Sec. 7

[6] Sec. 9

[7] RA 11165 Sec. 7

[8] Sec. 6

[9] DO-202-19 Sec. 6

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