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“They told me no”, that is how they answered Sandra González when she asked if they would give her the tools to work from home. Sandra turned six months old working remotely in 12-hour shifts in the technical support area of a company dedicated to the sale of GPS.
During his recruitment process he was told that the position would be remote. Sandra questioned whether they would give her the benefits established by the telecommuting reform, but the company’s response was negative. “I have my equipment and I pay for my services,” shares Sandra. According to a survey by OCC Mundial, 73% of people who work remotely do not have access to the rights established by the Federal Labor Law (LFT).
The teleworking reform came into force in January 2021 and established that the new provisions are applicable when a worker works more than 40% of your working day weekly at an address other than the workplace. In that same month, the Ministry of Labor and Social Welfare (STPS) established a position in which it ensured that the regulation could not be applicable in a context such as the pandemic in which teleworking is a response to restrictions due to the health emergency. .
A year later, the scenario is not the same and the epidemiological traffic lights allow the return of workers to face-to-face activities. Specialists agree that given this scenario, it is no longer feasible to justify non-compliance with the reform due to the pandemic, since the continuity of teleworking is already perceived as a decision of each organization.
Jimena Sánchez, a partner at the firm D&M Abogados, believes that the pandemic was never a sufficient reason not to apply the changes. “Telecommuting has not ceased to be telecommuting for a contingency issue. So, if you meet all the assumptions set by the reform, that is, that it represents more than 40% of your schedule and that it is through the use of information technologies, it is teleworking regardless of the reason.
For Carlos Ferran Martínez, managing partner of the firm Ferran Martínez Abogados, although there is still a clash of interpretations Regarding the validity of the reform in the context of the pandemic, the reality is that the market is at the right time to make changes to the contracts of teleworkers.
“Right now the discussion of who is going to stay working in telecommuting. In short, there is a recovery in mobility, in economic activity, many companies returning gradually or in full, and others that do not intend to return, and here the question and analysis that must be done is how much of my staff is going to stay working in the teleworking modality”, points out the specialist.
According to the World OCC survey, only the 27% of the universe Subject to the new teleworking rules, it has signed a modification to its contractual conditions to give certainty to the modality. But only 26% of those who do home office received equipment and material to work from home, the rest —as well as those who maintain their contractual relationship unchanged— continue to assume the costs of teleworking, like Sandra.
For Manuel Fuentes Muñiz, research professor at the Autonomous Metropolitan University (UAM), the challenge of telecommuting implementation It lies not only in modifying contractual relations, but in guaranteeing compliance with the new provisions, which has not occurred among those who have already signed the changes in their contracts.
“What some companies have done is that where they have telework, they establish that the modality does not exceed the 40% of the time to evade any responsibility that derives from it, such as paying for electricity, the internet or the tools that must be given to workers, ”says the labor lawyer.
3-2-2 work model
According to an investigation by the Talent Solutions firm of ManpowerGroup and Everest, the 3-2-2 model (three days in the office, two days at home and two days off) is the one that is predominating among the hybrid schemes that are being adopted the companies. But in a five-day weekly shift, working two from home implies not exceeding 40% of the time established by the LFT.
“There is a legal architecture to evade compliance with the telecommuting reform”, emphasizes Manuel Fuentes. With this format, the specialist points out, the objectives of teleworking regulation are diluted, such as guaranteeing the equipment of workers, safety and health, and that the working day does not exceed the legal limit.
From the perspective of Jimena Sánchez, the 3-2-2 model It is a legal way to maintain the Labor flexibility, granting the benefit of remote work, but without falling into the assumption established by the Federal Labor Law.
“If we work from home for two days and go to the office for three days, we are not in the telework figure because it does not represent more than 40 percent. even with that hybrid scheme, the bosses would be exempt from paying the expenses, from assigning the work tools”, explains the specialist.
This is just one example, the specialists agree, that after a year of application of the telecommuting reform, there are several legal loopholes that need to be reviewed.
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