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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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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

There is no specific statutory regulation on this matter related to employees under the home office framework. However, it is advisable to create a clear general policy on data protection or include in employment agreements provisions regarding data protection in order to clarify to employees the extent of their obligation. We recommend executing those documents in Spanish, due to the protective nature of local labour law; if there is a conflict with employees, a labour court is likely to dismiss all documents in a foreign language.

As a result, the Personal Data Protection Law (PDPL), Law No. 25,326, establishes the full protection of personal information recorded in personal files, registers, banks, or other technical means of data storage and processing. Therefore, employers must comply with the PDPL and take steps to ensure that this law applies throughout their organisation.

The main aspects of the PDPL are:

  1. The purpose of collecting employee data must be communicated to employees and written consent needs to be obtained.
  2. However, consent is not required if the data has been obtained from a public source; collected for the performance of the state’s duties; consists of lists limited to name, ID number, tax or social security identification, occupation, date of birth, domicile, and telephone number; or arises from a contractual relationship, either scientific or professional, of the data owner, and are necessary for its development or fulfilment.
  3. In addition, this Law establishes the employee’s right to access and modify any incorrect or false information. Furthermore, the collection of information related to an employee’s private life is permissible as long as the information collected complies with the following requirements: it is not used for discriminatory purposes; it does not violate the individual’s right to privacy; and it is reasonably used.
  4. When an employer requests personal data from an employee, they must be notified in advance and in an express and clear manner about: the purpose for which the data needs to be processed and who can use such data; the existence of the relevant data file or register, whether electronic or otherwise, and the identity and domicile of the responsible person; the compulsory or discretionary character of the information requested; the consequences of providing the data, of refusing to provide such data, or if it is inaccurate; and the data owner’s rights to data access, rectification, and suppression.
  5. Indeed, the processing of personal data requires express consent from the data owner, which must be accompanied by appropriate information, prominently and expressly explaining the nature of consent sought. This can be achieved by the employee signing a general consent form on entering employment. However, consent may be withdrawn by an employee.
  6. Various restrictions apply to the disclosure of personal data to third parties. This is generally only allowed if it is in the legitimate interests of the database owner (eg, the employer) and the data owner (eg, the employee) has consented. This consent can be revoked at any time by the data owner.
  7. The transfer of personal data to another country – which does not guarantee a proper level of data protection – is forbidden. Nevertheless, such prohibition is not applied when the individuals, whose personal information is intended to be transferred, give their express written consent.

All data regarding employees’ health is sensitive information, so the employer must get the express authorisation of the employee for any transfer of such date, and employers should stop or restrict the transfer to other companies or its employees that lack sufficient clearance to deal with health information, including covid-19 information.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

In the context of an employer-controlled workplace, it is generally much easier to control and mitigate risks to an organisation’s confidential and sensitive information. There are physical protections intrinsic to the workplace (including by generally being off-limits to non-staff) and cyber-networks often have institutional protections in place, such as virtual private networks, firewalls, anti-virus software and secure IP addresses.

Other data protections that normally exist in an employer-controlled workplace include:

  • the use of private meeting rooms to conduct meetings and discussions involving sensitive and confidential information;
  • the secure storage of private, confidential and sensitive information (both hardcopy and in electronic form) on employer-controlled premises;
  • restrictions on the use of personal electronic devices in the workplace; and
  • the content of phone calls or video calls, and even information simply displayed in the workplace (including on computer screens), being kept private under the confines of the physical workplace.

However, the risks to data protection can be much harder to mitigate in the remote-working environment. These risks are heightened for several reasons, including that an employer has much less “visibility” over how employees deal with the employer’s (and any client’s) information in the home environment and much less when it comes to others who may be sharing that space. In this context, one obvious risk is the inadvertent and even deliberate sharing of sensitive information with one’s housemates, family members or guests.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

The potential data protection risks associated with remote working are largely equivalent to those associated with working in a regular workplace, but are arguably even more prevalent.

A significant potential risk factor is the transfer of personal data if it is no longer securely stored on a company's servers. In addition, employers thereby transfer responsibility for the safekeeping and use of sensitive data to the worker. In doing so, employers have a significantly reduced ability to exert any influence. Nevertheless, companies are still generally regarded as being responsible for data protection within the meaning of the General Data Protection Regulation (GDPR), which creates a certain amount of friction.

It is also questionable whether a so-called privacy impact assessment must be carried out when working in a home office.

In principle, such an assessment must be conducted if data processing – especially when using new technologies – is likely to result in a high risk to the rights and freedoms of natural persons due to the nature, scope, circumstances, and purposes of the processing.

At present, it cannot be assumed that the threshold for the use of new technologies has already been exceeded in the context of remote working. In individual cases, however, it could amount to an "organisational solution" within the meaning of the GDPR, which also triggers the obligation of a privacy impact assessment by the data controller.

Insecure data connections that might not be constantly checked and maintained should also be considered. Another potential risk arises from it being easier for third parties to obtain access to sensitive data, whether it be persons in the same household or others at public places of work.

From a legal perspective, compliance with data security can also be adequately ensured for remote work, considering the GDPR and the corresponding national legal basis (Austrian Data Protection Act).

In home-office agreements, however, it is advisable to make further reference to data protection aspects. Here, companies should refer to the secure and data protection-compliant transport of sensitive hardware. Additionally, companies should take technical and organisational measures to ensure data security (eg, use of VPN, two-factor authentication with mobile phones, encryption of USB sticks, provision of a LAN network, requirements for secure storage of access data).

Last updated on 21/09/2021

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Belgium

  • at Van Olmen & Wynant

Employees who process data at home could create a data leak when they lose the data or improperly dispose of it after it is no longer useful for the company. It is also more difficult to protect digital data in a non-professional setting and a private network might be more vulnerable to breaches.

Article 9.3 of CBA No. 149 states that company data used and processed by teleworkers for professional purposes must be protected. Employers should inform teleworkers of the company's rules on data protection and, in particular, the restrictions and penalties for the misuse of IT equipment and tools. Considering this, it is strongly recommended for companies to draft and implement an IT policy.

Also, employees’ personal data could be at risk since teleworking often means a direct insight into the personal life of the employee, using remote-monitoring devices. Such devices or software could register data that is not purely linked to their work and might possibly breach several GDPR principles, such as data minimisation.

Last updated on 21/09/2021

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

In a remote-working environment, employees are more likely to use their personal devices and Wi-Fi and might share their workspace with family members or roommates. In addition, employees are more prone to mix personal and work-related data. These may lead not only to potential issues involving one’s privacy but also cyber threats and data leakage. Therefore, employers are strongly advised to implement strict policies on remote working, use of personal devices and data storage, as well as to provide the appropriate training.  

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

As in other countries in Europe, the provisions of the EU General Data Protection Regulation (GDPR) and its German implementation in the shape of the German Federal Data Protection Act (BDSG) must be observed. Against this background, special measures must be taken to protect personal data in connection with remote work. This especially concerns third-party access to systems when computers and other portable devices are used in the home or on the go. To this end, employers often issue guidelines of standards with which employees must comply.

Also, remote working poses many data protection risks in terms of IT security and confidentiality. For example, cybercrime exploits the vulnerabilities inherent to remote working to infiltrate IT systems and steal confidential data, for instance through phishing attacks. At the same time, the confidentiality of a phone call, for example, is harder to protect while working in a co-working space, on a train or at home than in a typical workspace. Therefore, remote working may require different security measures and employers should inform their employees accordingly. In this regard, the European Union Agency for Cybersecurity last year published cybersecurity tips for remote working, both for employees (connecting to the internet via secure wi-fi networks, fully updating antivirus software and using a secure connection) and for employers (providing initial and regular feedback to employees on how to react if problems arise and restricting access to sensitive systems, etc.).

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Although necessitated by the circumstances, the transition of employees from corporate networks to largely unmonitored and vulnerable private networks outside the reach of perimeter-based security tools finds most employers unprepared and, thus, exposed to greater cyber threats and personal data breaches compared to on-site work. Employers are urged to take into consideration the increased risks a remote working environment poses to their data, systems, and networks and to invest heavily in IT security, while employees are encouraged to carefully follow all IT security guidelines, stay alert to security incidents, and be vigilant with phishing attacks. Within this framework, the Hellenic Data Protection Authority (HDPA) issued “Guidelines for implementing safety measures in the context of teleworking” on 15 April 2020, including appropriate safety measures concerning network access, the use of email or messaging applications, the use of terminal or storage media and how teleconferencing takes place to mitigate data protection risks associated with remote working.

On the other hand, many of these measures may result in more extensive collection and processing (recording, use, disclosure, etc) of employees’ personal data, including monitoring procedures. The key issue for most employers amid these circumstances is to find the right balance between protecting their IT systems and data, on the one hand, and safeguarding the data protection and privacy rights of their employees while working from home on the other.

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As a result of the covid-19 pandemic, many companies in Hong Kong encouraged their staff to work remotely. This meant taking documents home from the office and using video conferencing, cloud computing and intranet platforms, where those software solutions were available, and also using personal devices to work more. As a result, confidentiality and security of data became more at risk.

Due to space constraints in Hong Kong, it is not practicable to expect employees to work or conduct confidential discussions in an isolated area away from others. Often employees are sharing workspace with family members and may also share a laptop or PC with them. If working from home is not an option for an employee, he or she may be working from cafes or public spaces. As a result, non-employees may overhear confidential discussions or see confidential documents. If these conversations and documents contain personal data (of employees, customers, clients, suppliers or other third parties), then the potential leakage of this data may constitute a breach of the Personal Data (Privacy) Ordinance (PDPO). There may also be contractual confidentiality breaches.

A typical home network is unlikely to have the same stringent security protections in place that an office network does. Attackers have seen an opportunity to steal user credentials from personal devices, which are now being used for work and likely do not have the same security protections as corporate devices. Using unsecured networks and devices may lead to data leakage or theft, which would be in breach of the PDPO.

If personal data is being processed by new third parties as a result of having to implement remote-working arrangements, an employer will need to notify its employees of this. This can be done by issuing employees with a revised or new Personal Information Collection Statement (PICS) setting out the change. The PDPO specifies that a data user, when collecting personal data directly from a data subject, must take all reasonably practicable steps to ensure that the data subject is informed of the intended use of their data and who will be handling such data. A PICS is therefore used to comply with these notification requirements and is a statement regarding a data user’s privacy policies and practices in relation to the personal data it handles. 

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

An individual’s sensitive personal data or information (SPDI), which includes information on passwords; financial information such as a bank account, credit card or debit card or other payment instrument details; physical, physiological and mental health conditions; sexual orientation; medical records and history; or biometric information or other details related to such information provided to a body corporate for the provision of services or such information received for processing under a lawful contract or otherwise and its storage are protected under Indian data privacy rules. There are certain mandatory obligations for collectors of such SPDI in electronic forms, including obtaining the consent of the data provider, formulating, publishing, and complying with a privacy policy for treatment of such data and adopting certain standards of security practices. However, these obligations are not specific to remote-working arrangements; they govern the terms of the data being collected by the employer.

With employees working remotely, employers are facing a challenge with protecting the security of client data and other confidential information, which may be duplicated or disclosed to third parties by employees working remotely on unsecured personal devices.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

The Data Protection Commissioner has issued guidance on the protection of personal data when working remotely (see here).

The key risks identified relate to protecting and preventing access to laptops, USBs, phones, tablets and other devices; emails; using unsecured networks to transmit data or to access company networks; and ensuring the security and confidentiality of hard-copy documents.

Employers should update data protection policies to take account of remote working and should also consider any data protection issues that may arise from an employee moving to work outside of Ireland.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Data security requirements applicable to all employees working at the company premises continue to apply to employees working remotely. In addition, the National Protocol on Smart Working specifies that the employer should promote the adoption of a policy also concerning data breach management and the implementation of proper security measures.

The main risks are linked to the transmission of company data outside the company premises, in places not necessarily identified.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

Security controls

The common risks associated with remote working derive from the absence of security controls over equipment, software, and data, and not having any policies for remote-working schemes, leading to:

  • employees storing sensitive information in their local machines, without the control of employers over such tools;
  • compromised security controls; and
  • Wi-Fi networks and routers in homes are more easily compromised, increasing the risk of exposure.

Companies have the right to install security controls for the equipment and tools to be used by teleworkers to avoid any leaks of information and limit their use, because this hardware is the property of the employer. The common practice in Mexico is to implement a security data policy and a work tools policy.

Additionally, even though there are no specific legal provisions concerning the plausible risks associated with data protection in remote-working schemes, the Federal Law for the Protection of Personal Data in Possession of Private Individuals or Entities, the Federal Law for the Protection of Industrial Property, and their regulations and guidelines, establish provisions for the protection of rights concerning personal data, confidential information, and trade secrets, which also apply to remote-working schemes; therefore, all employees working remotely must comply with these laws and regulations. To prevent and avoid the disclosure of this information, the prevailing practice is to enter into agreements with employees establishing specific obligations in connection to confidentiality and data privacy. Such obligations usually refer to the policies and processes established by employers to ensure information security, and the corresponding penalties in the event of any breach.

Last updated on 21/09/2021

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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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Poland

  • at Bird & Bird
  • at Bird & Bird

Telework or remote work should be organised in a way that ensures the protection of confidential information and other legally protected secrets, including trade secrets or personal data, as well as information whose disclosure could harm the employer.

Certain risks are present when employees perform work remotely:

  • they may use their own private equipment;
  • they may use company equipment for private purposes;
  • they may use an unsecured internet connection, including without a VPN (Virtual private network) connection; and
  • they may work from various unregulated locations, including coworking areas. 

Therefore, it is recommended that employers develop instructions regarding data protection and information safety (usually as part of their teleworking policy, which must be introduced with the participation of the employees' representatives) and ensure that these are introduced and applied effectively in the day-to-day work of remote workers.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Until the pandemic, teleworking was used rather infrequently, and most Portuguese employers were not prepared – namely in terms of technology and data storage – to suddenly have their workforce almost entirely and permanently working from home or remotely.

For those reasons, teleworking mainly raised – and continues to raise – concerns regarding the employer’s capacity to ensure that information is protected and that it stays confidential despite being remotely accessed and processed. Remote working enhances security vulnerabilities, which can lead to data breaches.

We would also like to highlight the use of technological solutions that, on one hand, allow employers to exercise their powers of management and control over work performance, but that, on the other, do not violate the general rule prohibiting the use of remote surveillance to control employees' professional performances, or that do not cause excessive restrictions on employees’ private lives.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely.  Taking precautions against importing viruses, compromising system security, and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks. 

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely in most jurisdictions. These risks are heightened in Saudi Arabia as there are no specific data protection laws in place. Taking precautions against importing viruses, compromising system security, and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Apart from the general personal data protection issues to be considered, there are two significant risks.

First, under article 17 of Law 10/2021, any digital program or software to monitor remote workers must grant employees privacy and protection of personal data according to the Organic Law on Personal Data Protection and Digital Rights Guarantees. In particular:

  • an employer’s access to the digital technology provided to the remote worker must be limited to checking compliance with labour obligations and to guaranteeing the integrity of the devices;
  • employers must establish the terms of use of the digital devices, and the workers’ representatives must participate in drafting them;
  • employers must inform remote workers about the terms of use of the digital devices; and
  • regardless of the terms of use, an employer’s access to the digital means must be necessary for the employer to achieve a legal purpose, appropriate for such legal purpose and proportional to achieve such legal purpose. Based on this, the employer should implement the least invasive way of monitoring remote workers’ activity to achieve the legal purpose the employer is pursuing.

Any measure to monitor employees’ activity should meet these requirements; otherwise, an employer’s decision arising from such monitoring could be deemed unfair, and there could be a breach of the employee’s privacy, which could lead to a damages claim and an administrative fine.

Second, employers must comply with the principles of personal data processing under article 5 of the GDPR, especially purpose limitation and data minimisation, which means that the personal data the employer can process should be only what is the minimum necessary data for the performance of the labour contract or compliance with their legal obligations. Therefore, employers are not entitled to, for instance, force remote workers to turn on their cameras during working hours.

Third, despite remote working, employers must comply with health and safety obligations, which could lead to the employer or its health and safety services provider visiting an employee’s home to evaluate its risks. In that case, employers should issue a report justifying the visit and provide it to the remote worker and the health and safety workers’ representatives in advance. Additionally, to access any remote worker’s home, the employer must first obtain their consent.

If they do not give their consent, measures on health and safety should be based only on the information provided by the remote workers.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

Pursuant to the GDPR, personal data should, inter alia, be processed in a manner that ensures appropriate security and confidentiality for the processing of that data, including by preventing unauthorised access to or use of personal data. For natural reasons, there may be additional challenges associated with this obligation when employees are working remotely, including an increased risk of personal data breaches when employees are working from home. The Swedish Authority for Privacy Protection mentions in its Privacy Protection Report of 2020 the increase in employees working from home as a result of the covid-19 pandemic, and the increased use of cloud service providers. The Authority highlights that data in cloud services is often transferred to countries outside the EU/EEA, and especially to the US. As a result of the Schrems II ruling in 2020, the use of, eg, cloud service providers that transfer data to  such jurisdictions (eg, in connection with IT maintenance) is problematic and may need to be addressed in relation to remote working.   

In light of the above, it is important as an employer to consider what measures are necessary in terms of IT security when working from home (eg, instructions to employees).

Last updated on 21/09/2021

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Switzerland

  • at Lenz & Staehelin

Employers are required to respect the general Swiss data protection principles and rules. In particular, the Swiss Code of Obligations (SCO) states that the Federal Act on Data Protection (FADP) applies to the handling of employer personal data. The term "personal data" is defined as any information relating to an identified or identifiable person (individuals and companies).

Employers must ensure the security of the data they process. They must take appropriate organisational and technical measures to protect personal data against unauthorised processing or access, such as accidental or unauthorised destruction, loss, technical errors, falsification, theft, unlawful use, alteration, copying or any other undue processing. Moreover, employers also must control access and operations undertaken by employees.

One particularity of remote working is that employees' workstation and business data are located off sites. Meaning that third parties potentially could access this data.

To prevent data protection breaches, employers must institute appropriate technical and organisational measures and raise employee's awareness of data protection risks. These measures may include securing information systems, setting up authorisations and limiting access to concerned employees, and using a VPN. In addition, employees also should be made aware of the risks and procedures through in-house training and user manuals for the IT and security systems.

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

The key data protection risks associated with remote working are data security and the processing of additional personal data while working remotely.

Under article 12 of the Personal Data Protection Law numbered 6698 (the DPL), data controllers must take all administrative and technical measures necessary to prevent unlawful processing of personal data, to prevent unlawful access to personal data and to ensure the security of personal data.

The Regulation also stipulates that the employer must inform remote workers about workplace rules and applicable legislation concerning the protection and transfer of data related to the workplace and their assignments (which may include personal data). The Regulation also emphasises that employers must take all necessary measures for the security of data. Per the Regulation, in the remote-working agreement, the employer must determine the definition and scope of data that needs to be protected.

There is no guidance from the Turkish Data Protection Authority (DPA) concerning measures to be taken specifically for remote working. Its general Guideline for Personal Data Security (Data Security Guideline) and the principal decision of the Turkish Data Protection Board concerning measures required to be taken by data controllers for processing sensitive personal data (Board Resolution for Sensitive Personal Data Security) should be considered by employers. The measures listed in the Data Security Guideline and the Board Resolution for Sensitive Personal Data Security are not exhaustive. Employers must consider all necessary measures for cyber security. International guidelines and IT sector developments should also be considered.

Employers who have failed to take appropriate measures to protect the unlawful processing of or access to personal data may be required to pay an administrative fine amounting to between 40,179 Turkish lira and 2,678,859[1] Turkish lira. Furthermore, additional technical measures taken for remote-working opportunities must also be communicated to the Data Controllers’ Registry if the employer is required to register data-processing activities (eg, employers located in Turkey that have more than 50 employees or have a balance sheet of more than 25 million lira fall under this obligation). Otherwise, although it may not be an imminent risk, an administrative sanction amounting to between 53,572 lira and 2,678,859 lira may be applied against the employer.

Lastly, if having remote-working employees requires an employer to process additional employee data, then the employer must inform their employees accordingly by providing an appropriate privacy notice under the DPL. Otherwise, they may be fined between 13,391 lira and 267,886 lira. The employer should determine what legal ground should be applied to the data processing due to remote working. If the applicable legal ground is consent but consent is not obtained lawfully from employees, then the employer may face an administrative fine of between 40,179 lira and 2,678,859 lira for unlawful processing. 


[1] All administrative fine amounts mentioned in this questionnaire will be updated for each year based on a re-evaluation determined annually.

Last updated on 09/02/2022

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UAE

  • at Clyde & Co
  • at Clyde & Co

Data loss, cyber security, privacy and maintaining confidentiality are the key data risks associated with working remotely in most jurisdictions. Taking precautions against importing viruses, compromising system security and maintaining confidentiality while working remotely are key considerations for employers. Internal policies and procedures should be put in place to ensure employees are aware of their obligations, and operating through virtual private networks could minimise potential risks. 

Last updated on 15/03/2022

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United Kingdom

  • at Littler

The key data protection risk associated with home working is data security.

In response to this, the UK’s data protection regulator – the Information Commissioner’s Office (ICO) – has issued guidance on the protection of personal data when working from home, using bring-your-own-device (BYOD) and working remotely (see: here).

The specific issues addressed include implementing appropriate workplace policies, IT security (including cloud-based storage security), the risk of theft and confidentiality.

Employers should update data protection policies to take account of remote working, in light of the ICO’s recommendations, and should also consider any data protection issues that may arise from an employee moving to work outside of the UK.

Last updated on 21/09/2021

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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

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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

The home office framework establishes that teleworking employees have the same rights and duties as those working at an employer’s main offices (including union rights), and their salary must not be less than what they would receive if they worked at an employer’s offices. Therefore, once employees are assigned to remote working, their compensation cannot be reduced due to this change.

In general terms, employers have the right to redesign or reassign job responsibilities. Such a right is known as an employer’s right to modify labour conditions (Ius Variandi). In this sense, local laws allow unilateral amendments to terms and conditions of the employment contract provided they do not adversely affect essential labour conditions and do not cause any moral or material damage to the employee and the changes are reasonable.

As a result, if an employer unilaterally decides to reduce the salaries or benefits of remote workers, and the change is considered to be unreasonable, resulting in material or moral damage to the employee involved, he or she can file an injunction to restore the original conditions of employment. If the employer refuses to do so, the employee may claim constructive dismissal and file for severance compensation and any applicable fines.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

An employee’s salary and contractual benefits are entitlements that are contractual and employers cannot unilaterally vary such entitlements. Similarly, an employee’s remuneration may reflect the minimum rate of pay provided for in an industrial instrument such as a Modern Award and employers will not be able to reduce the remuneration or benefits without running the risk of undermining the minimum entitlements provided in the instrument.

Employers can consult with staff about a proposal to restructure their hours and pay, but generally, no such changes can be implemented without employees being given an opportunity to consider the proposed changes and agreeing to those changes.

The minimum wage order provides that an employee cannot be paid less than the national minimum wage.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

Employers cannot unilaterally reduce employees' salaries because of remote work. A salary reduction is only possible either by mutual agreement or through a dismissal, with the option of re-employment on altered conditions.

Regarding benefits, we believe that a distinction must be made according to whether they were granted with working on office premises in mind and whether the employer has reserved a right to revoke them. In the latter case, employers may reduce or revoke benefits unilaterally. In addition, it can also be argued that, for example, meal vouchers for the company canteen are no longer issued and are not reimbursed. Such and other “social benefits by the company” can be limited to use at the company’s workplace.

Last updated on 21/09/2021

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Belgium

  • at Van Olmen & Wynant

In general, this would be considered a unilateral modification of the employment contract, which can be seen as an irregular termination of the employment contract by the employer, who will have to pay in lieu of notice if an employee claims this. However, the employer will no longer have to pay any agreed commuting expenses (but if the employer pays for a public transport subscription, this would just continue).

Last updated on 21/09/2021

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers cannot reduce the salaries or benefits of employees solely because they work remotely. Note that the federal government has introduced certain measures to help companies survive through the pandemic and avoid layoffs (eg, reducing employees’ working hours and salaries, suspending employment contracts temporarily, remote working (with fewer requirements than those set forth by the CLT), and delaying the collection of certain labour charges). These alternatives apply to all employees regardless of their work arrangement (ie, remote workers or not). Therefore, it may be the case that employees were shifted to a remote model and have had their working hours and salaries reduced. Other than that, salary reductions would depend on prior negotiation with the applicable union.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

The employer is required to pay remuneration based on an employment contract or collective bargaining agreement. Normally, there are no clauses in that contract that provide for a reduction in salary if the employee works remotely. However, special allowances for the reimbursement of expenses that become obsolete due to working from home (such as meal allowances or reimbursement of travel expenses) may no longer apply in individual cases.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Equal treatment between employees working remotely and those working at the company’s premises are guaranteed. Any reduction of salaries may be implemented only following the employee’s consent (ie, by signing an amendment of the employment agreement).

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

Unless the employee has a clear policy or a contractual provision that permits it to reduce salaries or benefits in this situation, it is unlikely that the employer could lawfully make such reductions without the employee’s consent. Where an employee has elected to work remotely and there is such a policy or contractual provision in place, the reduction in salary or benefits is unlikely to be challenged by the employee. Where an employee has been forced to work remotely by their employer (due to covid-19 or otherwise), such a reduction may be challenged as the remote working has not occurred at the employee’s request.

Generally, if an employer changes an employee’s salary or benefits unilaterally, an employee could bring potential claims against it for unlawful deduction from wages, unreasonable variation of employment terms or constructive dismissal.

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

“Wages including the period and mode of payment”, “contribution paid, or payable, by the employer to any provident fund or pension fund or for the benefit of the workmen under any law for the time being in force”, “compensatory and other allowances”, “hours of work and rest intervals”, “leave with wages and holidays” and “withdrawal of any customary concession or privilege or change in usage” are some of the protected conditions of service under the Indian labour law. For changing any such service conditions to the detriment of the workers, the employer is required to provide 21 days’ prior notice and inform the labour authorities in a prescribed format.

Additionally, the payment of salary and benefits is largely a matter of contract between the parties, beyond the minimum requirements under the labour laws in terms of wages, bonus, social security, insurance, overtime, etc. Hence, the terms of the individual employment contract and policies also need to be considered while reducing wages or removing benefits. These are generally sensitive matters and could also lead to HR issues for the employer, especially if the employees are unionised.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee. However, such a reduction could be agreed upon between the parties as part of an agreement, for example, to permit the employee to work remotely permanently.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Under Smart Working regulations, employees who work remotely are entitled to receive an overall economic treatment equal to that paid to employees working at the company’s premises. Therefore, generally speaking, employers cannot reduce salaries/benefits of employees working remotely. Nonetheless, recent Italian case law considered it possible for employers to revoke meal tickets from remote workers (except in the case of specific contractual obligations), as it is not part of the normal salary of the employee.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

No, any reductions to employees’ salaries or benefits are considered a unilateral modification to employment conditions, and therefore are grounds for justified rescission of the employment contract with total responsibility attributed to the employer. If this were to happen, severance will have to be paid as if it were an unjustified dismissal.

Last updated on 21/09/2021

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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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Poland

  • at Bird & Bird
  • at Bird & Bird

No. Any such action could be considered as discrimination or other unequal treatment. Remote workers must be remunerated based on the same rules as all other staff, including in terms of their access to other benefits. 

Likewise, within the principles adopted for all staff, remote workers may visit their employer’s office or premises, communicate with other employees, use the employer’s rooms, facilities and company social facilities, and may benefit from social activities organised by the employer.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Teleworking employees have the same rights and obligations as any other employees, which implies that no reduction in salaries or benefits is admissible, in principle. Under Portuguese labour law, employers cannot reduce basic remuneration unless there is a demotion, which must be, in any case, expressly authorised by both the employee and the Authority for Working Conditions (ACT).

Reducing or cancelling any other payments to remote workers would be deemed discriminatory, and therefore illegal, except for situations where valid grounds could justify it.

Moreover, concerning reducing or suppressing benefits, the fact that benefits have been granted regularly over the years may lead to their qualification as acquired rights of the employees and part of employees’ remuneration, which would mean restrictions on the termination, reduction or alteration of such payments.

During the beginning of the covid-19 pandemic, there was debate over whether employees were still entitled to a meal allowance if they were teleworking, since the cause for payment would cease to exist (ie, employees would no longer be forced to spend money on out-of-home meals). However, the government clarified that, under the special compulsory teleworking regime (whenever the nature of the functions being performed was compatible with it), employees retain the right to a meal allowance, based on the principle of equal rights for on-site employees and teleworkers. It is now fairly and widely accepted that such meal allowances cannot be withdrawn based on the circumstances of teleworking employees.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed upon with the employee.  There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed with the employee. There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

Article 4 of the Law on Remote Working provides equal rights for remote and on-site workers, so they receive equal pay and are entitled to the same schedule, breaks and work-life balance, and they are expressly included in equality plans and harassment prevention protocols.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

The employer is not entitled to unilaterally reduce the employee’s salary or other employment benefits unless provided for in the individual employment agreement or a collective bargaining agreement. Hence, such a measure would require an agreement between the employer and the employee. If the employer implements unilateral salary deductions, the employer may be held liable to pay damages for a breach of contract. Moreover, there is a risk that the employee can claim that the deductions imply an unlawful termination of employment, which could make the employer liable to pay both compensation for losses sustained (capped at 32 months’ salary) as well as general damages.

Last updated on 24/01/2022

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Switzerland

  • at Lenz & Staehelin

The payment of salary constitutes one of the employers' main obligations under an employment contract. This obligation exists even in the case of remote working and, therefore, it is not possible to reduce salary due to remote working.

Regarding benefits, a distinction must be made between different types. For example, it could be considered that employers who provide a car or a transport pass to employees could waive this benefit or reduce it proportionally if employees carry out all, or part, of their professional activity from home. However, if employees are paid meal allowances, it may be more difficult to justify removing this benefit, although the situation is less clear in situations in which employers provides employees with free meals.

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

As per article 14 of the TLA, remote workers cannot be treated differently from a comparable worker solely due to the nature of their employment contract. Employers cannot reduce the salaries or benefits of employees who work remotely merely on grounds of remote working. However, if there is other justification, such treatment may be acceptable.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

Any reduction in contractual salary or benefits cannot be unilaterally imposed and will need to be mutually agreed upon with the employee. There may be scope to unilaterally amend non-contractual benefits depending on how they have been structured.

Last updated on 08/11/2021

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United Kingdom

  • at Littler

No, unless they implement the reductions formally with the agreement of the employee or (if relevant) the union.

Any unilateral reduction of salary or benefits by an employer without the consent of an employee can be challenged by way of a breach of contract claim, an unlawful deduction of wages claim, or a claim of constructive dismissal on the part of an employee.

However, it is possible that such a reduction could be agreed between the parties as part of an agreement, for example, to permit the employee to work remotely on a permanent basis.

Last updated on 21/09/2021

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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

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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Argentina

  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua
  • at MBB Balado Bevilacqua

In cases where the home office framework is agreed upon at the beginning of the relationship, it must be carried out after consultation with a union representative.

Last updated on 13/07/2022

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Australia

  • at People + Culture Strategies

Whether an employer has an obligation to consult with or involve a union when introducing remote-working arrangements, and the extent of any influence the union can wield to determine how the remote-working arrangement will be implemented and managed, will depend on the terms of any agreement between the employer and the union.

It is our understanding that some Australian unions are looking to negotiate specific policies with employers to provide mechanisms and practices designed to support employees and employers to facilitate remote-working arrangements.

Last updated on 21/09/2021

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Austria

  • at Littler
  • at Littler
  • at Littler

Especially regarding home office work, the Austrian legislature has clarified that such work requires an agreement between employer and employee.  At the same time, however, the legal possibility was established to determine framework conditions under which home working can take place within a company through a works agreement. At this level, employee representatives (the works council) can therefore help to shape the implementation of remote working. However, the conclusion of such a works agreement is voluntary and cannot be enforced. Nevertheless, employers should inform the works council before introducing home working, as the works council has a general right to information, which in our opinion also includes the introduction of remote working.

In addition, various collective agreements for entire industries also lay down framework conditions for teleworking, although their implementation also requires an agreement between employer and employee.

Employee protection in the context of mobile working is already guaranteed by the fact that relevant worker protection laws also apply to remote work in their essential provisions. In practice, works agreements regularly provide for employers to undertake a workplace evaluation to ensure the health and safety of its employees.

Last updated on 21/09/2021

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Belgium

  • at Van Olmen & Wynant

Based on CBA No. 149, a consultation is required. Article 4 of the agreement differentiates how its principles can be applied: by collective labour agreements concluded at a company level; by an amendment to the work regulations; by individual agreement; or by duly communicated teleworking policies. In each case, they must be drawn up under the rules of consultation within the companies and any competent bodies or, in the absence of such bodies, with the workers, taking into account the particular conditions applicable to the company.

Last updated on 21/09/2021

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are not required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement. The CLT establishes, in brief, that: the remote-working arrangement must be part of an employment contract or amendment thereof; the change to a remote model must be made by mutual agreement between the parties; and employers can shift back to the regular model by informing employees with at least 15 days’ notice. Considering that the remote model is quite recent in Brazil (as an actual model provided under the law) and that the overall employment rules apply to remote workers regardless, with a few exceptions (eg, exemption for time tracking), unions have neither had any influence nor been active in challenging changes in working arrangements. During the pandemic, some unions have been more focused on ensuring that companies were observing the health and safety measures recommended by the Ministry of Health and the WHO, rather than on the working arrangement itself.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021

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Germany

  • at CMS Hasche Sigle

In Germany, employers are not required to consult or involve trade unions or other employee associations when a remote-working arrangement is introduced. Employers can, however, voluntarily enter into negotiations with the union to make arrangements for mobile work at the collective bargaining level.

More important is the involvement of the works council. The works council does not have a say in whether the employer allows mobile work. However, if the company has decided to allow remote working, the works council must be fully involved in any further arrangements. This includes, for example, the distribution of mobile work and office work, work equipment, the design of tasks, data privacy issues, working time and accessibility, and any plans for monitoring workers during mobile work. This is especially true after the Works Council Modernisation Act came into force in 2021, as Victoria Kaule and I have described elsewhere.

Last updated on 21/09/2021

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Greece

  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm
  • at Kyriakides Georgopoulos Law Firm

Remote working is agreed with each employee through the signing of a written agreement that should include all elements of the remote arrangement (ie,  equipment, costs to be covered by the employer, the employee’s right to disconnect, health and safety measures during the remote-working arrangement).

However, according to law 4808/2021 the technical and organisational measures required for the implementation of the employees’ right to disconnect must be agreed upon between the employer and the employee’s representatives. If no agreement is reached, the aforementioned measures must be communicated to the employee in writing.

Last updated on 14/07/2022

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Hong Kong

  • at Lewis Silkin
  • at Lewis Silkin
  • at Lewis Silkin

As the local pandemic situation in Hong Kong has been relatively stable, remote-working arrangements have been dealt with in more of an ad hoc fashion with many employers not putting in place formal remote-working policies.

Generally, there is no statutory obligation to consult with trade unions in Hong Kong on implementing remote-working arrangements. Some companies may, however, have policies in place that require them to consult with trade unions before making changes to employees’ terms and conditions of employment. Collective bargaining is not recognised in Hong Kong, so even if consultation with trade unions does take place, any change to employees’ employment contracts has to be individually consented to by each employee.

Last updated on 11/10/2021

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India

  • at Nishith Desai
  • at Nishith Desai

Unless there are unionised employees in the workplace or collective bargaining agreements necessitating an employer to negotiate the terms and conditions of employment to maintain industrial harmony, employers are not required to consult or otherwise involve a trade union when introducing a remote-working arrangement to their workplace. In such cases, as long as employee consent is procured for implementing such change in the employee’s service conditions, unless there is contractual right available to the employer to automatically do so, it should be possible for the employer to implement such change. Any influence of the union in this respect will have to be assessed based on the scale of operation of the employer, nature of operation of the employer, percentage of unionised employees in the establishment etc.

Last updated on 08/07/2022

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Ireland

Ireland

  • at Littler

No, unless there is a collective bargaining agreement in place that imposes such a requirement. Ireland operates a voluntarist approach to trade union recognition, which means that there is no mandatory recognition of trade unions, and so they have limited (if any) influence in non-unionised workplaces.

Last updated on 21/09/2021

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Italy

  • at Toffoletto De Luca Tamajo

Generally, no. In some cases, National Collective Bargaining Agreements (NCBAs) may provide a specific obligation to inform and consult unions.

Furthermore, in the context of covid-19 emergency, companies have set up internal committees, formed by a) a representative of the employer b) representatives of the employees (ie, Works council and Representative of the workers for health and safety “RLS”) and c) the company’s occupational doctor, to periodically monitor the effectiveness of the safety measures implemented by the company and, if necessary, amend or confirm them.

Last updated on 14/07/2022

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Mexico

  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo
  • at Marván, González Graf y González Larrazolo

By legal definition, teleworking must be included in the respective collective bargaining agreement (CBA). The terms and conditions of the CBA for teleworkers shall include all the relevant and special conditions of the services. Teleworkers enjoy equal rights when compared to those applicable to standard employees, including training, salary, health, social security and the right to remain employed. The implementation of teleworking is voluntary and must be agreed in writing; therefore, it is negotiated by unions. However, teleworking can be unilaterally determined by the employer in the presence of force majeure that impedes the continuity of standard services.  

Last updated on 21/09/2021

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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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Poland

  • at Bird & Bird
  • at Bird & Bird

Yes, employers are required to consult and agree with the trade unions or employee representatives on the terms and conditions of teleworking policies. However, if no agreement is reached by the parties within 30 days from the date draft teleworking regulations are presented by the employer, the employer is free to introduce the teleworking policy as prepared, considering the arrangements made with the trade unions or employee representatives when negotiating their terms.

There are no similar requirements related to temporary pandemic-related remote-working arrangements that can be introduced by an employer without consultation, negotiation or other consent of the employees or their representatives.

Last updated on 21/03/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

No, this level of intervention regarding remote-working and telework arrangements is not available to unions.

At the most, unions can ask for information on general teleworking regimes that employers may wish to agree with employees under the general guidelines of the Portuguese Labour Code, since unions are entitled to be informed about decisions that are likely to trigger substantial changes in the organisation of work or employment contracts.

Nonetheless, please note that collective bargaining agreements may introduce specific terms regarding teleworking and remote-working regimes.

Last updated on 13/07/2022

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Qatar

  • at Clyde & Co
  • at Clyde & Co

There is no requirement for consultation. Workers’ committees can mediate and provide recommendations for the employer’s consideration and have the ability to conclude collective-bargaining agreements; however, their influence in altering working arrangements is limited.

Last updated on 08/11/2021

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Saudi Arabia

  • at Clyde & Co
  • at Clyde & Co

Not applicable – please see question 18.

Last updated on 29/11/2021

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Spain

  • at Cuatrecasas
  • at Cuatrecasas

As mentioned before, employers must provide the works council with a copy of the remote-work agreements and notify them of any change to such contracts. They are only entitled to share their opinions on the contract and the labour conditions with the employer. But the works council cannot change a remote-working agreement, unless they challenge the decision and a court grants it.

Last updated on 21/09/2021

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Sweden

  • at DLA Piper
  • at DLA Piper
  • at DLA Piper

If an employer is bound by a collective bargaining agreement, the employer, as a main rule, should request and conclude trade union negotiations before implementing an obligation to work remotely. Trade union representatives can present their views on this arrangement in the negotiation. However, a trade union cannot alter or veto the employer's homeworking arrangements (assuming that the collective bargaining agreement does not prohibit remote working). That being said, a trade union may take action if there are deficiencies in the working environment for employees working from home.

If the home-working arrangement is voluntary for employees, there is generally no obligation to perform trade union negotiations. The trade union, however, has a right to be informed about any changes relevant for employees under section 19 of the Swedish Co-Determination (in the workplace) Act.

If there is no collective bargaining agreement in place for the employer, there is no obligation to request trade union negotiations. Depending on the individual circumstances (eg, if it is a permanent solution and if the employment agreement allows for such a change of workplace) an agreement with the individual employee may be required for the employer to impose an obligation to work remotely on employees.

Last updated on 21/09/2021

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Switzerland

  • at Lenz & Staehelin

In general, there is no obligation to consult with unions if employers want to introduce remote working in the company.

If employers are planning to introduce forced remote working on a long-term basis, the implementation of this change would require a termination-modification (ie, a termination of the contract coupled with a new job offer).

Last updated on 30/09/2021

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Turkey

  • at Gün + Partners
  • at Gün + Partners
  • at Gün + Partners

The Regulation on Remote Working is silent about employee rights arising from collective labour law. However, collective bargaining agreements can regulate the execution, content, and termination of individual contracts. Therefore, remote working may be regulated as part of the content of an individual contract. As per article 41 of the Act on Unions and Collective Bargaining Agreements, unions to which at least 1% of workers in the relevant field of business are a member can execute a collective bargaining agreement for a certain business or workplace, provided that more than half of the workers employed at the workplace or 40% of the workers employed in the business are members of the union at the application date.

In this regard, the Banking-Finance and Insurance Workers Union announced that they raised this issue in their collective bargaining processes. As remote working has only become widespread during the covid-19 pandemic and the Regulation on Remote Working entered into force only recently, the influence of unions on working arrangements would vary depending on the negotiation process and their relations with employers.

Last updated on 21/09/2021

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UAE

  • at Clyde & Co
  • at Clyde & Co

Not applicable – refer to question 18.

Last updated on 08/11/2021

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United Kingdom

  • at Littler

Union activity in UK workforces is lower than in many other countries.

There is no legal obligation to consult a union about introducing a remote-working arrangement, unless there is a collective bargaining agreement in place that imposes such a requirement, or the employer habitually consults a relevant union about this.

Last updated on 25/11/2021

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United States

  • at Littler
  • at Littler
  • at Littler

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