Teleworking: Analysis of its regulation in the Mexican framework and recent projects to reform the Federal Labor Law on Teleworking
The Federal Labor Law, as amended in 2012, considers home office is work performed at a distance using information and communication technologies; however, it did not specify whether a home office is a modality other than teleworking, nor did it establish the particular elements or general conditions under which teleworking must be performed, or the rights and obligations of both teleworkers and bosses.
Due to the global pandemic caused by the Covid-19 virus, two bills to reform the Federal Labor Law were presented in the Chamber of Deputies of the Congress of the Union, to regulate the figure of teleworking with clearer principles and rules. The first of them was presented by Representative Ricardo Flores Suárez, of the PAN, on June 28, 2020; the second was by Representative Manuel de Jesús Baldenebro Arredondo Encuentro Social on August 26, 2020.
The draft decree defines telework as the mode of distance work organization in which it uses information technology and communication for the performance of the activities required by an employer.
It also establishes that teleworking’s general conditions must be made in writing and specify, in addition to the requirements outlined in Article 25 of the Federal Labor Law, the nature, salary, quality, and quantity of teleworking. The draft decree imposes new special obligations on employers, such as the following: to previously register in the Registry of Teleworking Employers, which will depend on the General Directorate of Labor Inspection of the Ministry of Labor and Social Welfare, to deliver a copy of the contract to the Teleworking Inspection, to keep a teleworker’s record book in which they will record the data of the teleworker, to provide the necessary equipment to the teleworker to carry out his work and to provide the labor inspectors and any other authority with the reports they request.
The draft decree imposes on the teleworker the following new special obligations: to take special care and conservation of the information and communication technology equipment, to perform the work with the agreed quality, to receive and deliver the telework on the agreed days and hours, and to compensate the employer for the loss or deterioration that the information technology equipment suffers due to his fault in terms of article 110, section I of the Federal Labor Law.
As to the rights of teleworkers, the draft decree establishes that teleworkers’ salaries may not be less than those paid for similar jobs to regular workers in the company or establishment. Additionally, teleworkers will enjoy the labor law’s minimum benefits and will be entitled to social security and maternity, paternity, and adoption leave.
The draft decree intends to regulate in a general way the figure of teleworking, it does not specify other aspects that are fundamental such as the rights of the teleworker to return to the face-to-face activity, to disconnection, and his/her privacy; the limits to the working day and, if applicable, the calculation of the extraordinary time that the teleworker may work at home; the expenses generated by the telework, the use of the confidential information of the bosses and the accidents that may be caused at the teleworker’s home.
On the other hand, the reform project presented by the parliamentary group of Encuentro Social, is much more protectionist of the rights of teleworkers by establishing more rights for them, and for the first time, regulating the right to disconnect from the Internet.
Also, this initiative establishes that the bosses will also have the right to agree on the modality of face-to-face work or telework, which means that it will be necessary for both parties by mutual consent and voluntarily agree that the teleworker will work under the modality of telework, having the latter the right to return at any time to work in the workplace. The result is an innovative reform project that proposes that teleworking can be: total when it is done all the time in a different place from the work center and the rest of the time in person for a determined time or work schedule and for a greater cause when the employer requires the teleworker to work under this modality after his established workday and schedule; however, it does not define or specify what the causes of force majeure would be.
It is of vital importance that the Congress of the Union retakes as soon as possible the analysis of both reform decree projects to regulate the figure of teleworking, and in its case, propose a regulation that fits the reality we are living in. Manuals or internal policies must be elaborated. Each company regulates its services under this modality, hand in hand with the guidelines and norms issued by the federal government.
Lic. Génesis Moyeda Salazar
Gloria Ponce de León & Hernández