On February 5, 2021, Resolution No. 54/2021 of the Ministry of Labor, Employment and Social Security was published in the Official Gazette, ordering the entry into force of Remote Employment Law No. 27,555 and its regulations, as of April 1, 2021.
The Remote Employment Law was published in the Official Gazette on August 14, 2020. It currently has 19 sections regulating the minimum legal requirements for remote employment. The Remote Employment Law also modifies the Labor Contract Law (LCT) by ordering that the latter incorporate section 102 bis into its text so as to guarantee that remote workers enjoy the same rights as in-person workers.
On January 21, 2021, Presidential Decree No. 27/2021 (the Regulation) was published in the Official Gazette allowing the Argentine Executive Branch to regulate 11 of the 19 sections of the Remote Employment Law.
Below we offer its highlights and important considerations that will apply as of April 1, 2021 based on a harmonious interpretation of Remote Employment Law No. 27,555 and Regulatory Decree No. 27/2021:
- Consent: Under the law, workers must consent to start rendering services remotely, at the employer's request; meaning that remote work is ultimately willful. This condition is set out in Section 7 of the Remote Employment Law and has not been regulated. Thus, our interpretation of the text is that workers must be willing to work remotely and consent in writing.
- Exceptions to Remote Employment: The Remote Employment Law provides the minimum legal requirements for the regulation of remote labor. However, the Regulation provides that the Remote Employment Law will not apply when (i) the worker’s tasks are performed at the premises, dependencies or branches of clients to whom the employer provides services on a continuous or regular basis, or (ii) the work is rendered sporadically and occasionally at the worker’s home, either at the request of the latter or on account of exceptional circumstances.
Although not expressly stated in the Remote Employment Law, it does not apply exclusively to remote workers, but also to mixed remote and face-to-face labor schemes; given that the employer has the power under the law to organize and direct performance, it can define how and where service will be rendered.
- Rights and Obligations: The Remote Employment Law guarantees remote workers the same rights and obligations as people who work in-person and stipulates that their remuneration cannot be lower than that of in-person workers.
In addition, collective bargaining agreements must provide a combination of in-person and remote benefits consistent with each respective format. To date, only one collective bargaining agreement has dealt with the regulation of remote work: Collective Bargaining Agreement No. 709/15, which regulates the activity of private drivers. The agreement stipulates that “in cases in which work is performed remotely, the Remote Employment Law will be observed, once in force, especially with respect to compensation for the costs of connectivity, health and security, the right of disconnection and reversibility, and the right to Union Representation.” However, the agreement does not specify reimbursement or compensation amounts for connectivity costs, nor does it provide a different regulation than that in the Remote Employment Law or its Regulation.
- Digital Disconnection: Digital disconnection is the right of remote workers to rest, recover and rebuild between the end of a remote work day and the following day. To this end, the remote worker will have the right not work outside of working hours, except in certain extraordinary circumstances, accidents, or force majeure. Any tasks provided by the remote worker outside of his/her normal working hours are considered as overtime, and subject to the usual overtime regime, which takes into account the person’s daily and weekly working hours and rank.
In addition, remote workers will have the right not to be contacted and to disconnect from digital devices and/or information and communication technologies outside of working hours and during leaves of absence and cannot be sanctioned by the employer for making use of this right. Based on recommendations that were made to the Executive Branch, the Regulation also provides that, when the company’s (or the employer’s) business activities are conducted in different time zones or when other objective reasons so demand, the employer may send communications to its remote workers outside of working hours.
In all cases, the remote worker is not obligated to respond to these messages until the beginning of the following day (regardless of whether the worker performs service remotely or in-person), except when such communications are aimed at averting danger or in the event of an actual or imminent accident or force majeure, or for exceptional economic reasons affecting the national economy or the company’s economy. In addition, the employer may not provide incentives to gear remote workers to waive their right to disconnection. According to the Regulation, overtime pay increases will not be considered incentives.
- Caretaking: Remote workers who certify that they are, either solely or jointly, responsible for minors under the age of thirteen, people with disabilities or elderly adults who require assistance will have the right to schedules compatible with their caretaking duties and/or to interrupt their workday to perform their duties.
The employer cannot interfere with the exercise of this right and, consequently, any action on the part of the employer that hinders this right will be deemed as discriminatory. The Law allows for specific guidelines to be set in this regard through collective bargaining agreements.
Any person who wishes to carry out the caretaking duties provided by the Remote Employment Law must inform his/her employer virtually and precisely when their time off begins and when it ends. The Regulation does not provide a special procedure or a minimum notice period, for the employer to be able to make necessary accommodations for the continuity of its operations and/or to organize its workload in exercise of the powers conferred by the Labor Contract Law.
The Regulation provides that in those cases in which caretaking duties clash with the current legal or conventional work day, reductions may be convened in accordance with the conditions set in any applicable collective bargaining agreement. However, to date, there are no collective bargaining agreements that regulate this right. The employer may not provide incentives to prevent the exercise of caretaking rights. In addition, both employers and employees must ensure a gender-equitable use of caretaking time, so as to foster male participation.
- Reversibility: Reversibility is the right of the remote worker to demand that his or her employer cease the remote work format and assign the worker in-person tasks, after having invoked a reasonable and supervening reason to support the request.
It can be inferred from the Remote Employment Law that the person’s consent to work remotely may be revoked at any time. In this case, the employer must assign that person tasks to be performed on the premises where the person worked before switching to remote work or, if not possible, in the closest facility to his/her home, unless that is not possible for well-founded reasons. Any breach of this obligation by the employer will be considered a violation of the employer’s duty to keep its workers occupied. Likewise, if the employer refuses, the employee will be entitled to constructive dismissal or to take legal action so that the conditions that were modified are reestablished through precautionary measures and a summary procedure.
The Regulation provides that the reversibility right and the fulfillment of the employer's obligation must be exercised in good faith so that the right is not abused. Both must be done in collaboration, solidarity and good faith owed by the parties in an employment relationship, to fulfill the purposes for which the regulation was drafted. The Regulation provides that the remote worker notify his or her employer of his or her desire to resume working in-person, invoking a reasonable reason to do so (which, in our understanding of the law, means the person must first have consented to work remotely in the first place), and the employer must revert them back to in-person work as quickly as possible within no more than 30 days. If the employer cannot revert the person back to in-person work, the time elapsed from between the switch from in-person to remote work will be considered. Lastly, the Regulation stipulates that people who have agreed to work remotely from the beginning of the employment relationship may not revoke their consent or demand that tasks be performed in-person, unless otherwise stated in the applicable collective bargaining agreement, or that expressly arises from the individual employment contract.
- Work Tools: The employer must provide the remote worker with equipment, including hardware and software, work tools and the necessary support for the performance of their tasks, assuming the costs of installation, maintenance and repair, or compensation for the use of the person’s own tools.
Under the Remote Employment Law, compensation applies in accordance with the guidelines set out in collective bargaining agreements, although to date no collective bargaining agreements stipulate the scope of compensation.
Remote workers are responsible for the correct use and maintenance of the working tools provided by the employer and must ensure that they are not used by third parties. In addition, remote workers will not be liable for normal use and tear. In case of damage, breakage, or wear in technological elements that prevent the performance of tasks, the employer must replace or repair them and must continue to pay the worker’s remuneration without pay cuts.
Under the Regulation, the provision of working tools will not be considered remunerative nor will it be part of the remuneration base for the calculation of any item emerging from the employment contract, or union or social security contributions. In addition, the parties may agree on how it will be calculated, in cases in which the relationship is not covered by the scope of a collective agreement.
In 2012, the Labor Risks Superintendency (SRT) issued Resolution No. 1552/2012, by which in section 3 it set out that the employer must provide remote workers with (i) an ergonomic chair; (ii) a portable fire extinguisher (1 kg HCFC 123 fire extinguisher); (iii) a first aid kit; (iv) a mouse pad (“mouse pad”), and; (v) a Manual of Good Health and Safety Practices in Remote Work published on the website of the Labor Ministry. Based on Executive measures to reduce the spread of COVID-19, the SRT issued Resolution No. 21/2020 that set out that employers who work remotely must notify their Work Risk Insurer: (i) the payroll of remote personnel, (ii) the address from which they render services, and (iii) the working hours of each employee. Furthermore, SRT Resolution 21/2020 rendered SRT Resolution 1552/12 inapplicable, as these measures are exceptional and do not correspond to a typical remote work situation.
Consequently, as of April 1, 2021, employers must comply with Resolution No. 1552/2012 of the SRT and must deliver the material listed in section 3 mentioned in the previous paragraph.
- Compensation of Expenses: Remote workers will have the right to compensation for the costs of connectivity and/or consumption of services. The expenses or services that must be compensated have not been listed in the Remote Employment Law or in its Regulation, but under these, compensation will operate as provided in the collective bargaining agreement and will be exempt from income tax. The Regulation provides that compensation for expenses, even without proof, will not be considered remunerative.
Both in this point and in that of the working tools, it will be important to see how caselaw evolves with respect to the scope of the regulation and its coexistence with the provisions of the law that is being regulated. Although the law stipulates that compensation of expenses is subject to collective bargaining agreements, to date no collective bargaining agreements have introduced amendments. Consequently, in the absence of a specific regulation, the market practice is to pay a fixed sum for each day of Remote Employment defined by objective parameters, which includes compensating all expenses without receipts.
- Union Representation: Remote worker’s will be represented by whatever union association applies to his or her work activity.
Remote workers must be enrolled by the employer in a work center, productive unit, or specific area of the company for the purposes of choosing a union and being able to be elected into a union body.
The Regulation provides that annexation will take place in the premises where the person previously provided in-person service, and when the worker agrees to work remotely from the beginning of the employment relationship, the employer must consult with the union as to which productive units apply to that worker.
- Health and Safety: The Remote Employment Law provides that the Labor Ministry must issue workplace health and safety norms to provide adequate protection to remote workers, and that unions must participate in compliance oversight. Likewise, under the Law, diseases resulting from remote work must be considered occupational diseases and accidents that occur during the workday are presumed to be occupational accidents.
Under the Regulation, the Labor Ministry, through the Labor Risks Superintendency, must prepare a study on applicable health and safety conditions and the need to include remote work diseases in the list of occupational diseases.
- Oversight System and Right to Privacy: Unions must participate in oversight systems carried out by the employer to safeguard the privacy of the remote worker and his/her home. The Regulation provides that union participation will take place through joint audits, made up of technicians appointed by the union association and by the company, guaranteeing the confidentiality of processes and data and limited to preserving the rights of remote workers.
The Remote Employment Law and Regulation do not stipulate how the employer may oversee remote workers who are not under a collective bargaining agreement and/or are not covered by collective representation. In those cases, we understand that the employer may carry out oversight activities, after notifying employees of how that oversight will be conducted and obtaining their express consent. As provided by the Remote Employment Law for systems verified by the union, any oversight not covered by a conventional norm may not affect workers’ privacy, environment, residence or home.
- Enforcement Authority. Registry. Supervision: The Argentine Labor Ministry is the authority in charge of the application of the Remote Employment Law and must register the companies that carry out tasks remotely, accrediting the software or platform to be used and the list of people who carry out these tasks, who must be reported before each hire or monthly. The Labor Ministry may delegate registration tasks to the local administrative authorities to maintain the consistency of the registry, under the administration of the different jurisdictions. Information requirements will not cover data related to the business of the company, and the information in these records must be sent to the relevant union organization.
Oversight will be conducted in compliance with the legal and conventional provisions governing remote tasks and meeting current regulations on labor inspection, and any inspection from the enforcement authority must have prior authorization from the remote worker. The union entity will only receive the information corresponding to the payroll of the people who work remotely, their registrations and terminations.