How is an alternative work arrangement possible? What are the rights of an employee under this set-up? What is the obligation of the employee?
Flexibility in times of pandemic
Everyone is perhaps saturated with daily news about the coronavirus for over a year now. However, the most recent news here in the Philippines makes us even more anxious. The daily infections are now rising exponentially.
One of the most affected sectors in a worsening pandemic is the working class. Just a few months ago, the government decided to loosen restrictions and partially reopen the economy.
Now, it seems we are back to square one after more than a year of adjustments.
As of writing, new movement restrictions have been imposed in Metro Manila and nearby areas. Employers have scaled back the workforce in their respective offices and businesses. They have reintroduced or tightened alternative work arrangements.
It is time to look back to this concept under the lens of its legal backdrop.
You may be asking, “Is there a law that allows for an alternative work arrangement?” The answer is Yes.
Telecommuting Act
Even before the pandemic, Philippine law allows employers the flexibility to adopt an alternative work arrangement.
This is Republic Act No. 11165 or the “Telecommuting Act,” approved by the President on December 20, 2018.
This law seeks to address the costly effect of heavy traffic on the economy. Reports show that the country loses billions of pesos due to heavy traffic alone. Employees usually complain about coming to work very late because of heavy traffic. They experience the same burden when going home from work.
Workers waste their time and energy on long hours of commuting or waiting on congested roads. This results to lower output and productivity.
The Telecommuting Act defines “telecommuting” as a work arrangement that allows an employee to work from an alternative workplace with the use telecommunication or computer technologies. This means that employees can do their work without the need to endure heavy traffic while going to offices. An employee just needs to use available technology to be able to perform his task.
An employee who works in Makati, for example, can now do “telecommuting” in a coffee shop or in the comfort of his home in Calamba, Laguna.
Now with the pandemic still raging, adopting a “telecommuting” is needed more than ever.
Who administers this alternative work arrangement?
Employers will decide if they will adopt an alternative work arrangement.
This is due to their management prerogative. This allows them to set flexible rules that are best for the nature of their business and the work of their employees.
However, employers do not have absolute discretion to impose this set-up. The law encourages the employer and his employees to mutually agree on it.
An alternative work arrangement is voluntary on the part of the employee.
In addition, the employer cannot diminish the minimum labor standards and benefits due to the employee who agrees to an alternative work arrangement.
Section 4. Telecommuting Program. - An employer in private sector may offer a telecommuting program to its employees on a voluntary bases, and upon such terms and conditions as they may mutually agree upon: Provided, That such terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. In all cases, 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 employee.
What are the rights of a “telecommuting employee”?
The “telecommuting” employees are protected against possible prejudice and bias of the employer.
An employer must accord “telecommuting” employees fair treatment along with other employees who did not avail of the same set-up.
Section 5. Fair Treatment. - The employer shall ensure that the telecommuting employee are given the same treatment as that of comparable employees are given the same treatment as that of comparable employees working at the time employer's premises. All telecommuting employee shall:
(a) 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.
(b) Have the right to rest periods, regular holidays, and special nonworking days.
(c) Have the same or equivalent workload and performance standards as those of comparable worker at the employer's premises.
(d) 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.
(e) Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting.
(f) Have the same collectible rights as the workers at the employer's premises, and shall not be barred from communicating with workers' representatives.
Despite working away from colleagues, employers must also take measures to prevent the “telecommuting” employee from being isolated from the rest of the working community.
He can give this employee the opportunity to meet with colleagues on a regular basis and allow access to company information.
What is the obligation of the employee?
The employee who works under an alternative work arrangement has the obligation to protect confidential data and information of the employer. There are inherent risks while working outside the office.
Both the employer and his employee must ensure that proper safeguards are in place to prevent breaches of data privacy that might come with the use of unsecured technology in other places. An example of this is the risk in the use of public wifi.
Section 6. Data Protection. - 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. The employer shall inform the telecommuting employee of all relevant laws, and company rules concerning sata protection. The telecommuting employee shall ensure that confidential and proprietary information are protected at all times.
The Telecommuting Act makes the provisions of the Data Privacy Act of 2012 suppletorily applicable to address issues on data privacy.
Adapt to the new normal
The Telecommuting Act gives employers the flexibility they need in times such as a pandemic. But this law also reminds employers that they cannot defeat the rights of the employees in an alternative work arrangement. Between the employer and the employee, the latter stands to suffer directly from the economic effects of lockdowns and work restrictions.
