New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Since March 2020, the Dutch government has advised that employees should work (partly) from home, unless this is not possible. Currently, the advice is that employees can work up to a maximum of 50% of their working hours at the office. This concerns all “types of workers” (employees, independent contractors, etc.), but, because it concerns a governmental emergency measure, it does not provide employees with an explicit “right to work from home” or “right to work remotely”. On 23 November 2021, the government issued guidelines, which employers could use to accommodate employees (at least) temporarily working remotely. These guidelines (in Dutch) can be found here.

Although most employees have been working from home, or at least partly from home as of March 2020, Dutch legislation is brief on remote working and does not provide a right to remote working. The Flexible Work Act (Wfw), which applies to employers with more than 10 employees, has been in effect since 1 July 2016 and under this legislation, employees who have been employed for at least six months before the intended start date of the requested adjustment can request to adjust, inter alia, their place of work. Article 1(d) of the Wfw defines “place of work” as “any agreed place which is or is usually used by the employee in connection with the performance of work.” In principle, employers have to consider the request and – if the request is being rejected – to discuss it with the employee. In addition, once the request to adjust the place of work has been granted, the employer can withdraw the adjustment.

More recently, on 27 January 2021, the legislative proposal the “Work Where You Want Act” was submitted. This would provide employees with a right to homeworking and aims to provide employees with more freedom to divide their time between the workplace and working from home. It is expected that the legislative proposal will be discussed with the House of Representatives in February 2022.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, many states have passed laws that recognise remote-working arrangements. This includes laws concerning employee reimbursement of costs relating to remote work, workers’ compensation, tax, timekeeping and meal breaks, data privacy, and providing accommodation.  Because companies may be legally considered to be employers or “co-employers” of consultants and contractors, these rules may also apply to non-employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Employees who process data at home could create a data leak if they lose the data or improperly dispose of it after it is no longer useful for the company or their work. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches. If a data breach does occur, the employee should, in principle, report this to the Dutch Data Protection Authority within 72 hours.

Employers are advised to update data protection policies to take into account remote working, and should also consider any data protection issues that may arise from an employee moving to work outside of The Netherlands.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Data privacy rules vary from state to state. Remote work, in particular, raises issues where employers have less control over the working environment and employees are potentially accessing sensitive information in their home that they share with others.  Employers should ensure that employees working remotely can demonstrate that their location provides sufficient privacy, security, and safety to secure the confidentiality of the employee’s work, company information and materials.  Additionally, health-related data must be protected and employers should be required to protect trade secrets and other confidential data. Employers must also maintain reasonable security measures to protect sensitive personally identifying information. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

The use of equipment to monitor employees is subject to strict conditions under article 8 of the European Convention on Human Rights, the General Data Protection Regulation (GDPR) and Article 7:611 of the Dutch Civil Code (DCC).

In practice, we see several types of ICT software being used to remotely monitor employees’ activities on computers used by the employee at home (e.g., logging in- and out, the number of keystrokes, usage of e-mail and internet, screenshots or photos of the workplace at home can be taken via the webcam). These methods of monitoring are invasive to the privacy of employees and should be treated with much caution. It seems that these forms of monitoring cannot easily be considered necessary, since employees who work at the office are not being permanently supervised or monitored either.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Monitoring and surveillance laws vary from state to state, and there are also, potentially, tort and criminal laws regarding invasion of privacy that must be considered where the employee has an expectation of privacy.  While audio or key-stroke monitoring may be minimally intrusive, video surveillance is almost always problematic. Some states require only one-party consent for audio monitoring, but others require that all the parties to a conversation consent to such monitoring.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Employers are required to provide their employees with the relevant work equipment to perform their duties. This also concerns employees who work remotely. In addition, there is an obligation for employers to make sure employees can perform their duties in a safe and responsible way and employers will need to cover the costs associated therewith.

On 1 January 2022, the government introduced a tax-free home-working allowance of a maximum of 2 euro per (part of the) day of homeworking, to compensate the employee for costs associated with remote working (e.g., internet and electricity costs). However, this is not a mandatory allowance. Based on the Work-Related Expenses Scheme, there could be more tax-free reimbursements in place in regarding the costs associated with providing work equipment, but whether this is permitted should be checked on a case-by-case basis.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

There is a patchwork of various state laws, either by judicial decision or statute, affecting expense reimbursement, particularly in instances involving mandatory remote work as opposed to remote work requested by the employee. Ascertaining expense reimbursement obligations is one of the most challenging aspects of implementing a compliant teleworking arrangement. Some states do not require reimbursement of work equipment, internet, etc, while others, such as California, do require reimbursement of “all necessary expenditures.”

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

There can be potential issues and risks concerning the taxation of salaries, social security coverage, the applicable labour law for employers in the context of cross-border remote-working agreements (e.g, article 8 Rome I Regulation) and issues related to the applicable court in case of litigation (e.g., EEX or Brussel I Regulation).

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Employees who cross state borders trigger a host of risks for their employer. The obligations of the jurisdiction where the work is performed will generally prevail (depending upon duration).  For example, state law, and even municipal law, control employers’ leave obligations (such as time off to vote, paid family leave, or paid sick leave).  With paid sick leave, this can become very complicated, as each law has different tracking, recordkeeping and accrual requirements. In addition, state withholdings and income tax, as well as insurance (workers compensation), must be considered.  Local ordinances often also control wage-and-hour issues such as how and when an employee must be paid, pay-statement requirements, whether an exemption applies or overtime must be paid, and other nuanced areas such as required employer policies, or notices relating to wages or unemployment insurance.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, this is not the case unless the individual employee provides his consent therewith. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (e.g, travel expenses) may no longer apply in individual cases.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Most jurisdictions in the US have at-will employment, so that with appropriate advance notice, salaries and benefits of at-will employees can be reduced without issue (ie, assuming no contract and the pay does not fall below the threshold for minimum wage or to maintain any particular exemption).  However, as with any workplace policy, the law mandates that selection for wage reduction be without regard to protected status such as race, age or disability. Thus, there may be an exposure to risk of claims to the extent that those who work remotely are seeking an accommodation or there is a potential for disparate impact.  Thus, employers should ensure that there is no "disparate impact" on any protected status that is required to work remotely.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

An employer cannot require or mandate that their workers receive a covid-19 vaccination. Under Dutch law, as stated in the Dutch constitution, vaccination is voluntary (the sanctity of human life).

Employers may, however, encourage their employees to get vaccinated of their own free will, for example by promoting vaccination. Still, it is vital to exercise caution when promoting vaccination, as employees might easily feel that they are being “pressured” by their employer and are being limited in their decision whether or not to get vaccinated.

Furthermore, an employer can ask employees about their vaccination status, if the employer has a 'good reason' to do so. Such “good reason” entails that the question on the vaccination status is (i) proportionate, (ii) necessary to achieve a legitimate purpose and (iii) the purpose cannot be achieved by less dramatic measures. Possibilities seem limited. Employers must also take into account the GDPR, as they are not permitted to process data about the vaccination status of their employees.

More information can be found here

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability.  Another option is to consider having employees show vaccination proof or submit to weekly covid-19 testing, wear masks, and keep physically distant from other workers and visitors.  Employers can also encourage and incentivise employees to get vaccinated by offering prizes, developing vaccination education campaigns, offering vaccinations on-site, covering any costs that might be associated with getting the vaccine, or providing paid time off for employees to get the vaccine and recover from any potential side effects. However, state lawmakers have introduced dozens of legislative proposals to make it harder for employers to require that employees get a covid-19 vaccine.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Under current law, employers may not make entry to the workplace conditional on employees having received a covid-19 vaccination. If an employer refuses an employee access to the workplace, the employee is not only entitled to continued payment of salary but can also enforce his right to employment in court. In addition, refusing entry for unvaccinated employees could be considered as discrimination and a violation of privacy legislation.

More information can be found here

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

While federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

This is not the case, but this might change soon. There are several legislative proposals in this regard expected to be discussed by the House of Representatives or which are currently on-hold in the light of the current covid-19 situation.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, this includes the healthcare industry, as well as some federal and municipal agencies.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Information about whether an employee has been vaccinated and other medical information is personal data concerning health within the meaning of GDPR. Employers are not permitted to process such personal data about their employees unless they can invoke a ground for an exception. At present, no such grounds exist. This means that the GDPR prevents employers from recording their employees’ vaccination status or otherwise processing any data associated with their status.

More information can be found here

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

With limited exceptions, the Americans with Disabilities Act requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatment, but also the fact that an individual has requested or is receiving a reasonable accommodation. In addition, employers must maintain reasonable security measures to protect sensitive personally identifying information.  Specific data privacy rules vary state by state.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

An employer has the statutory duty of care to provide employees with a safe and healthy working environment irrespective of whether work is performed from the office or “location-independent work”, based on the Dutch Working Conditions Act and article 7:658 DCC. Additional rules and obligations apply based on the Working Conditions Decree and the Working Conditions Regulations. The Netherlands Labour Authority (a governmental institution) enforces this legislation and if there is non-compliance, a penalty can ultimately be imposed. The Netherlands Labour Authority is also competent to inspect the workplace; even when employees are working remotely.

In short, the key health and safety obligations for “location-independent work” are that the workstation must meet the criteria for ergonomic working and computer screen equipment, unless this cannot reasonably be expected from the employer (Chapter 5 Working Conditions Regulations). Employers must ensure their workers have proper supplies, such as approved chairs and tables, good artificial lighting (unless the employee already has such facilities) and that employees with special needs are accommodated. The employer should bear or reimburse the costs incurred (article 44 Working Conditions Act). Employers should, furthermore, regularly and pro-actively inform employees of healthy working conditions and the furnishings for an ergonomic workspace. This is a continuous duty of care. Employers should also check whether the remote workspace complies with working conditions obligations, for example by having a picture or video taken of the workspace by the employee. Furthermore, based on Article 3 paragraph 2 of the Working Conditions Act, the employer is obligated to have a policy in place aimed at preventing and – if that is not possible – limiting the psychosocial workload (PSA).

For location-independent work, health and safety obligations are somewhat alleviated compared to working at the office. The most important exception is that chapter 3 of the Working Conditions Decree concerning the arrangement of the workplace is not applicable, meaning that regulations relating to escape routes, emergency exits, firefighting, preventing the risk of falling, etc, do not apply to location-independent work.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

The OSHA governs the relationship between employers and employees with respect to workplace health and safety, and provides employer mandates regarding possible hazards in the traditional workplace. The key issues in work from home safety revolves around ergonomics. But the law recognises that employers have limited direction and control over the employee’s residence or other remote locations such as coffee shops, public libraries and so forth.  Nevertheless, employers have in many instances required employees to commit to keeping a safe workplace in their home and wherever they may work.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

The covid-19 pandemic has had a great impact on employers' health and safety obligations towards their employees, especially concerning mental health challenges due to the change in working conditions during the pandemic. This includes the lack of social contact with colleagues and private and work lives intertwining.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

With covid-19, the focus has shifted from workplace injury to workplace illness. Thus, the obligations have been expanded in that employers have had to think about exposures both inside and outside the workplace, and establishing safety protocols to help prevent employees from bringing the hazard into the workplace. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, the relevant health and safety obligations apply to “location-independent work”, which includes both mobile working and working from home. However, there are some exceptions made in terms of mobile workers. For example, artificial lighting requirements and requirements on supplying approved chairs and tables do not apply, as an employer is not responsible for furnishing such a workplace. There are ongoing discussions between legal experts on whether more distinction should be made between working from home and other forms of remote working in terms of the working conditions and what should be expected from employers (and employees).

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Yes.  Employees who as part of their job travel, visit customers and clients, and go from place to place, may be exposed to health and safety conditions that are beyond their employer’s control.  Nevertheless, employers need to take reasonable steps to keep their employees safe, even when they are outside the brick-and-mortar workplace.  The employer’s obligations to ensure their workers’ safety follows them as they travel for work, and, to the extent feasible, employers need to anticipate and mitigate against potential risks. On the other hand, employees who work from home are less likely to be exposed to these kinds of hazards, and the employer’s responsibility for the safety of employees who work from home is far less than for mobile workers or, of course, on-site workers. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

Since the pandemic, the mental health of employees, who have been mostly working remotely for two years, appears to be under more pressure compared to pre-pandemic times. Burnouts are looming because employees who work remotely are more likely to be constantly on-call and to work overtime.

Based on article 3 paragraph 2 of the Working Conditions Act, employers have an obligation to have a policy in place aimed at preventing and – if that is not possible – limiting the PSA. This also concerns workers who are working remotely.

Employers must take the relevant measures in this regard based on the risk inventory and evaluation (RI&E) performed and must establish and implement a plan of action to prevent or limit the PSA of its employees. Employers are also obliged to provide information and instructions to employees who are working remotely on the risks of PSA and the measures taken to prevent and reduce such risks. It is also recommended that employers should regularly monitor the functioning of the remote worker and his or her “well-being”.

If an employer does not comply with the aforementioned duty of care, this could eventually lead to The Netherlands Labour Authority imposing administrative fines. In addition, the employer could – in certain circumstances – be held liable for any health (including mental health) damages suffered by employees pursuant to article 7:658 paragraph 1 DCC.

Furthermore, insufficient care for the PSA can create obstacles to granti a request to dismiss an employee based on underperformance (article 7:669 paragraph 3(d) DCC), as this would require that the inadequate performance may not be the result of insufficient care on the part of the employer for the working conditions or training of the employee. In addition, a higher fair compensation (billijke vergoeding) could be granted by a court in case the insufficient care for the PSA of the employee is deemed a seriously culpable act of the employer.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

This is not an area that has been a priority in the United States, particularly if the employees are remote. However, this will likely be a developing area in the future that employers will have to consider in light of the changes being brought about by the pandemic.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

In principle, regular rules on redundancy due to business or economic reasons remain applicable during the pandemic. However, if an employer has been applying for one or more of the different tranches of the Temporary Emergency Bridging Measure to Preserve Employment (the NOW scheme), which provide a payroll subsidy in a given period and is based on the employer’s (expected) loss of revenue, making redundancies could have consequences for the total amount of subsidies received. For each tranche of the NOW-scheme, different rules apply. Under the most recent NOW 6.0, which could be applied for until 13 April 2022, employers can reduce their loan costs (e.g., by reducing a maximum of 15% of its payroll) without affecting the subsidy received. However, this cost-saving method must be determined in consultation with employees or the works council or staff representation.

Employers can, in principle, only reduce employees’ wages and benefits with the consent of the employee, as this would concern a unilateral amendment of their employment conditions. Employers, furthermore, cannot unilaterally force employees to take unpaid leave or vacation days.

More information on NOW 6.0 can be found here

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

The pandemic has caused many companies to have to re-evaluate employee salaries and wages, and to make staffing changes. Where required by collective-bargaining agreements, these changes have resulted in bargaining with unions.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

During the covid-19 pandemic, several trade unions demanded that employees be granted the right to work from home. Furthermore, trade unions also advocated that employees working from home should receive an extra allowance for additional costs associated with remote working (e.g., internet and electricity costs). On 1 January 2022, the government has granted this request; it introduced a tax-free home-working allowance of a maximum of 2 euro per (part of the) day of homeworking. Please note, this is not a mandatory allowance.

Last updated on 08/03/2022

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United States

  • at Littler
  • at Littler
  • at Littler

Unions are criticising company responses (especially the lack of paid leave, sufficient staffing, and a process to address employee safety concerns) in recent organising efforts. The best thing non-union employers can do to avoid union drives of this nature is to be transparent. Employers should develop and communicate a covid-19 response that is compliant with state or federal mandates and “best practice” recommendations, be as flexible as is reasonably possible in balancing the interests of employees and the business, and regularly update employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Netherlands

  • at Rutgers & Posch
  • at Rutgers & Posch

As long as there is no collective labour agreement in place, which gives rise to any relevant co-determination rights of trade unions on this matter, there is, in principle, no involvement of a trade union required when a remote-working arrangement is being introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at a collective bargaining level.

In case a works council has been installed (obligatory to install for companies with more than 50 employees), their involvement for the introduction of a regulation on remote working seems mandatory. The works council might have the following rights related to the intended remote-working policy.

  • The works council is entitled to receive all information reasonably necessary for the performance of its duties, also when an employer intends to introduce a remote-working arrangement. In principle, it is up to the works council to decide what information it reasonably needs. The company can impose on the works council a duty of confidentiality on all information provided.
     
  • Prior consent of the works council is necessary for the introduction (or modification or withdrawal) of a remote-working policy based on article 27 of the Dutch Works Council Act (WOR). The company must submit any intended decisions in this respect in writing to the works council, together with a summary of the reasons for the proposal and the anticipated consequences for employees. Before the works council makes its decision, at least one consultation meeting between the employer and the works council on the subject must take place. If the works council does not give its consent to the proposed decision, the company may request the Cantonal Court to approve the decision. The Cantonal Court may only grant approval if the works council’s refusal to grant approval is unreasonable, or if the company’s proposed decision is based on important business-organisational, business-economic or business-social reasons.

    If a remote-working arrangement is introduced without the consent of the works council or the Cantonal Court, it shall be rendered null and void. This is, however, only the case if the works council so advises the company in writing within one month after the company has notified the works council of the decision or, in the event no notification has been given, within one month after becoming aware that the decision is being implemented or applied by the company.
     
  • Furthermore, the implementation of a remote-working scheme may require consultation with the works council if it falls under the scope of article 25 WOR (eg, when major investments are to be made for the benefit of the company or if important technological facilities are to be introduced or modified). Before rendering its advice, the works council and the company will then need to deliberate on the matter at least once in a consultative meeting, which means that the company is obliged to join such a meeting and provide the works council with the requested information. The company has to give the works council a reasonable amount of time (in practice four to eight weeks, depending on the matter) to render its advice.

The works council can render positive advice, positive advice with some conditions that have to be taken into account in the company’s decision, or negative advice. If the advice of the works council has not or not in its entirety been followed (eg, if the works council rendered negative advice or positive advice with conditions that have not been taken into account by the company), the company must inform the works council of the reasons for not following the advice. This will cause a delay in the process as the employer must suspend implementation of the decision for one month after the date on which the works council was notified of the decision. During this month, the works council has the opportunity to appeal to the Court of Appeal. The only possible ground for appeal is that the company could not have reasonably reached its decision, having properly weighed up the interests involved.

If the decision conforms fully with the advice (or the works council rendered positive advice on the intended decision), the employer can directly implement the decision.

If staff representation is installed, which is mandatory for companies between 10 and 50 employees, co-determination rights could apply in terms of, inter alia, the introduction of a remote-working policy.

More information can also be found here

 

Last updated on 08/03/2022

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United States

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Unionised employers may unilaterally implement a policy requiring employees to work from home if the applicable collective bargaining agreement contains language granting the employer the right to implement such a requirement. Unilateral action also would be permissible if a local, state or federal law mandates working remotely for certain classifications for employees. Even in that case, however, the employer would still have an obligation to bargain over any discretionary aspects of the policy, such as:

  • classes of employees subject to remote work (unless specified by the order);
  • frequency and timing;
  • consequences of an employee’s refusal; and
  • where the remote work will be performed.

Other provisions in a collective bargaining agreement may cede control over the situation to the employer. For example, the CBA may include a “management-rights provision” which permits the employer to operate and manage the workplace, require standards of performance, implement improved operational methods and procedures, or promulgate rules, regulations and personnel policies.  Even if the clause does not explicitly address the issue of working from home, it may be argued that the union has waived its right to bargain over the matter. 

Employers with union-represented employees need to carefully review existing collective-bargaining agreements to determine whether there is sufficient management rights language that would permit an employer to mandate working from home as a condition of employment.

Furthermore, to the extent an employer seeks to avoid a bargaining obligation by claiming that working from home is consistent with a local, state, or federal law or regulation, it will need to show that it is actually mandated by the law to require this.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021