“Setting up and framing telecommuting,” Interview with Marine DUBOIS, Director of LegalPlace’s LegalPlace Legal Offers and Social Rights

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Since the beginning of confinement, telework has been an obligation. Businesses must therefore adapt and do what is necessary to set up telework properly. Beyond the obvious organizational constraints, a whole legal framework is evolving. Also, Kanoon, a digital law firm driven by LegalPlace, has developed a telework charter generation tool. It therefore allows companies to obtain free custom and successful documents for each customer online. BORDEAUX Business spoke with Marine DUBOIS, Kanoon’s co-founder and labour lawyer, to better understand the legal impact of telecommuting on businesses and employees.

How does Kanoon support companies in setting up telecommuting?

First of all, it must be understood that the legal rule is not the same for now as it is for after. To study the issue of the introduction of telework in the company, we must therefore distinguish between telework now within the framework of containment,and telework which could be generalized in a more normal situation, say.

In any event, the introduction of telework involves a number of legal considerations. To do this, Kanoon has created a tool that allows to generate telework charters in a completely individualized way. Clients complete a questionnaire to be able to generate the charter that adapts to their needs. It is made available free of charge to allow each company to equip itself quickly. It is a fairly didactic tool that studies the whole question: what tools, what methods of telework? With this, we can not only generate the charter but also the employment contract endorsements.

How do employees need to be protected?

The new version of the National Protocol in Business on October 22 determined telework as the rule for all missions that can be done remotely. The employer can therefore impose it on its employees and can even punish an employee who returns to work. The question is therefore only whether the functions can be performed remotely or not. This must be established in a good time, and avoid abuse of rights. Let me give you an example: all but one of the team members come back to work, so we can feel that there is unequal treatment. Beyond that, to this day, telecommuting is the rule.

On the other hand, telework is usually not normal, excluding confinement. Hence the interest of formalizing this way of working. It can then be expected that in exceptional circumstances (such as Covid), telework becomes the rule. But the conditions of occasional telework and regular telework are mainly framed.

Casual telework refers to cases of various figures such as a transport strike or an employer’s decision announced by e-mail exchange. In this case, the employee can refuse. The charter frames what is casual.

For regular telework, it is a matter of framing something that existed before but that will be even more present after. Regular telecommuting does not necessarily mean 100%. For example, there are more and more requests from employees for home office between 1 and 3 days a week. The employer therefore needs to be able to frame it in the telework charter and by an endorsement to the employment contract to clearly determine the framework. The ideal is therefore to make a detailed charter and reduce the endorsement as much as possible so that it only refers to the charter. This gives the company more flexibility because the endorsement can only be changed with the employee’s consent. The charter, on the other hand, can evolve.

The endorsement is required in regular telework only. It is a very good practice, but it does not prevent the drafting of the charter. It complements to formalize telework between the company and the employee.

The telework charter sets the rules for regular telework in business. An indispensable tool to work in good conditions.

What are the pitfalls and risks of telecommuting without a formalized framework?

Today, if the employee has not been told in any document that he is teleworking, the risk is enormous because the employer can be accused of not protecting the health of employees. With the Covid, the contamination of the employee constitutes a very serious legal risk. In this context, the employee can assert his right to withdraw the employee because the company has not put in place a rule that protects him. The employer therefore faces the risk of criminal punishment if it does not comply with its duty of safety.

Beyond this aspect, there are also organizational issues. If we do not determine which employee comes to work or not, it is the ambient mess. What days does that come? What is the maximum number of people that the workspace can accommodate?

It is therefore clearly in our best interest to regulate telework. Since the Macron announcements of 2017, an employer cannot refuse telework to an employee except by motivating the answer. It is a time-consuming and cumbersome approach. In addition, it pushes to treat each application individually when it could be collective. It is enough to have already determined which functions are suitable to be able to work in telework in the charter.

It also helps to better control working time. It should be remembered that there is an obligation in labour law to be able to control the employee’s working time. He is paid on an hourly basis so legally he must be paid more if he works more. The courts have for years considered that if an employee works more, even implicitly, he is entitled to ask for overtime. More than that, it can go back to the previous 3 years. The risk has always existed but they are easier to judge in terms of presentation for the employer. The telework charter is therefore also intended to regulate working time. For example, it can determine availability times or telework flexibility rules. It’s also reassuring for managers. In addition, it is an opportunity to create resources of social interaction with these dedicated moments.

In addition, telework is a case for new questions. Is hourly time a good way to calculate employees’ work? With the generalization of autonomy in the management of the schedule, there are more and more requests for enterprise agreements on stay. We then change the unit of measurement to pass for example on a basis of working days. This, of course, means changing the relationship of trust in the company. We are entering into a policy of results rather than working time.

Should the implementation of telework give rise to the ESC consultation in advance?

It depends on the ESCs. The remit of a Social and Economic Committee for a company with less than 50 employees differs from that of an ETC of a company with more than 50 employees.

The CSE consultation is necessary for companies with more than 50 employees. Management must then submit a project to the CSE. Second, the CSE gives a justified opinion. Then the company sets up the charter that wishes. For companies with less than 50 employees, we only have an obligation to inform, not consult. Generally, we are just content with a discussion in a meeting with the CSE but without any particular formalization.

What are the practicalities in the Telework Charter?

In practical terms, the telework charter can be very comprehensive. But we can identify a few major topics to address. The categories of employees covered, the hours of availability, the professional use of tools (for computer security issues in particular), the rest and disconnection times. This last point in particular encompasses quite broad concepts. The risk of losing the notion of private time/pro, thehealth obligation that requires defining rest times: 11 hours of rest between two days of work, obligation to rest on Sunday, time to disconnect

Regular telework can be determined at the time of hiring. In which case, the framework is clear from the start. But in the course of a working relationship, the legal rule is different. We must then allow a period of reciprocal adaptation. This period of “testing” telework must be set in the telework charter. At the end of the adjustment period, both the employee and the employer can reverse the decision.

Framing telework allows work time and personal life to coexist, while taking into account the flexibility induced by working from home.

What are the rights and duties of teleworkers?

First of all, determining which employees can benefit from telecommuting is unique to each company. Legally, any employee can benefit from it. However, good practice requires reflection on tasks that can be done at home. There are positions that are clearly not compatible with telework. This is particularly the case for employees who have little autonomy, cumbersome work tools, computer security issues…

In the current context of the crisis, the employee has an obligation to respect the employer’s decision. It can only comply. Its obligations under this telework are set by the employer to ensure that the collaboration goes as smoothly as possible. In reality, it works exactly the same way as it does in the present. The employer may have the same level of requirement, but the employee must be able to rest, disconnect.

Should the employer compensate the employee?

On this, we have seen a legal evolution in recent years so that is a very good question. Previously, an inter-professional agreement made telework compensation mandatory. Now, since the Macrons announcements, the employer no longer has a legal obligation to compensate for telework. However, some cases go in the opposite direction for employees who have charges due to telework. The employer must therefore still bear all the costs of telework, the reimbursement of the actual costs justified by the employee.

In addition, there is the question of supplementary compensation for electricity, heating and even a proportion of rent. On this point, there is no legal obligation but the employer can do so on a flat-rate basis or on actual costs. On a flat-rate basis, he then receives a social charge exemption of up to 10 euros per month for one day of telework per week. It is an invitation to the employer to be able to compensate for telework with additional compensation.

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