Author: Noelia Cisneros
The technological evolution has encourage the implementation around world of different ways to work. The physical presence of employees in a company is not necessary for the purpose of maintaining a valid employment contract, but through the so-called “teleworking” thousands of employees provide their services remotely, outside the company’s facilities.
Teleworking is for many an efficient and even “eco-friendly” way of productivity. For companies, it implies a considerable saving in office and public service expenses, as well as for teleworkers, which leads to a reduction in their travel times and a greater flexibility in terms of from where to work.
However, it must be considered that even when the parties to the employment relationship do not see each other on a daily basis, it is still a contractual employement relationship in which both parties have legal rights and obligations to comply with. In this way, under telework, the personal rendering of a service is contracted in a subordinate manner, and the employer still has management power with respect to the contracted work, and the breaches may be sanctioned. Teleworking does not mean that the collaborator is authorized to watch television while working, but neither will the Company have real control to verify whether he does. Teleworking implies trust and clear rules between the parties.
The lack of specific legislation on teleworking has not discourage the application of this way of working, day by day more jobs are added to this modality. Currently, in the legislative there is a project to regulate teleworking in Costa Rica, (Exp. 21.141), however, it does not shed light on practical aspects that should be taken into consideration in case of applying this measure. Some general recommendations for your company:
- Have a written employment agreement: Regardless of whether you are going to telecommute, our recommendation is always to have an employment contract in which the essential conditions of the relationship are agreed: working days, general responsibilities and performance metrics for the contracted position, among others. The essential thing is to sign a document in which both parties state that they voluntarily submit to a certain form of work with basic rules.
If the company has an employment contract in which telework was not agreed and wish to change to that modality, both can subscribe an addendum to the current contract referring to the agreement between the parties. It is recommended to have an employment contract that fits the reality of the Company and not a general format that is not enforceable in a future judicial process.
- Respect for the limits of the working shifts: The limits of the daily work must always be respected: maximum of 8 hours in day shifts, mixed shift 7 and night 6 hours. For these limits, 2 exceptions may apply:
- Cumulative shift: Not working on the 6th day or work fewer hours, so that in the rest of the week the day shift is extended up to 10 hours or the mixed up to 8 hours, respecting the weekly limit of 48 hours.
- Positions excluded from the limits of the general shifts: Trusted positions, managers, administrators, or employees who work without immediate superior control can work a daily shift of up to 12 hours with a rest time of 1.5 hours within the day according to article 143 of the Labor Code.
- Internal policies on work tools: It should be agreed which work tools are delivered to the teleworker for the fulfillment of their goals, as well as to warn in writing which are the technological tools with which the performance will be supervised.
- Have specialized legal support: Considering that the current Labor Code does not regulate teleworking, your company must be protected against various contingencies. For example, in terms of occupational health and work risks, important aspects that mitigate possible work accidents should be taken into consideration because the company has no control (generally) of the conditions of the place from which the service will be provided.
For more information about this or other legal matters, please contact us at info@ghp.cr.