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New law on teleworking and distance working in Spain

Remote Working

The digital transformation we are experiencing in 2020, driven by the coronavirus crisis, has generated unprecedented changes in many aspects of our lives, including in terms of work. This change has meant that teleworking is no longer an option but almost an obligation, and is now a real option in many companies.

In view of this situation, it became necessary to regulate telework in Spain through Royal Decree Law 28/2020.

The new telecommuting law is designed to regulate the conditions under which a large part of Spain is working from home. The new legislation specifies the obligations to be fulfilled by companies and workers who choose to work from home.

What is the telework law?

The law on telework establishes that telework is considered to be work activities in a relationship of dependence that are carried out during a certain amount of time, depending on the type of contract of the worker.

Según establece la norma las tareas deben ser llevadas a cabo por el empleado, a distancia, es decir, fuera de las oficinas. Pudiendo darse la relación laboral tanto en el domicilio particular de la persona como en un espacio común como un coworking. Además, la Ley dice exactamente que el teletrabajo será “aquel trabajo a distancia que se lleva a cabo mediante el uso exclusivo o prevalente de medios y sistemas informáticos, telemáticos y de telecomunicación”

How is Remote Work Defined?

The Law establishes as remote work the work carried out by an employee outside the workplace, provided that it represents at least 30% of the working day and is carried out over a period of at least 3 months. In other words, if we take as a reference a week, five days, the employee must work remotely for at least one and a half days.

In order to implement remote working, minimum conditions must be met:

  • Telework should be voluntary for both the employee and the employer, and fully reversible at any time by either party.
  • Employees who work remotely have the same rights and obligations as those who work in person.
  • In order to implement teleworking, there must be a formalised written agreement between the employer and the employee setting out the minimum conditions governing the employment relationship. And this agreement must be registered at the employment office.

What is the Remote Working Agreement

The agreement constitutes a manifestation of willingness on the part of the worker to provide a certain service in exchange for monetary remuneration, and on the part of the company to establish the parameters of this service and the payment of the salary.

As established by the standard, the telework or telecommuting agreement must be in writing, incorporated into the employment contract, either initially or subsequently, but in any case, before the commencement of the service.

The agreement has a range of compulsory clauses setting out:

  • The inventory of equipment, means and tools necessary for the development of the work, as well as the useful life or maximum time for their renewal. The expenses incurred by the worker due to the fact of providing remote services, the form of quantification of the compensation.
  • Place of work chosen by the employee to carry out his or her activity, working hours and availability rules, as well as the percentage and distribution between face-to-face and remote work and the duration of the service.
  • Work centre of the company to which the worker is assigned.
  • Notice periods for the exercise of reversibility actions.
  • Means of control of the company in the provision of the service.
  • Procedures in case of technical difficulties preventing the normal execution of the work.
  • Data protection and information security parameters, particularly applicable to remote working.

What is Telework Expense Allowance or Expense Reimbursement?

In principle, it is essential to remember that opting for teleworking does not represent any change in the salary received. Neither to the detriment nor to the benefit of the worker. Those who carry out all or part of their work remotely must receive, as a minimum, the total remuneration established in accordance with their professional group, level, position, functions…

What costs can be included?

What does change is that the company will have to bear the costs associated with the implementation of remote working and, in addition, carry out a number of procedures.

The agreement signed between the parties shall provide for the transfer of materials, equipment and tools necessary for the work.

And the company will be responsible for the associated costs, such as electricity and Wi-Fi. The form of compensation for the associated costs must be determined by mutual agreement between the parties. To date, current legislation does not expressly regulate how and how much the employee should be compensated for these expenses.

How to calculate the percentages?

The Telework Law does not specify how to calculate it, so the worker must, either by himself or through his trade union representatives, draw up a telework agreement, specifying the emerging expenses incurred by the provision of the service.

Such a telework agreement should clearly and specifically specify the services that can be covered in whole or in part by the company, as working should not generate extra costs for the employee.

Do remote and face-to-face work have the same rights?

Of course, if you are teleworking, your employment rights cannot be infringed, impaired, relaxed or minimised by the employer, in accordance with the principle of equality and non-discrimination, as laid down in Article 4 of the Law. Therefore, equal treatment and opportunities prevail in the practice of teleworking.

Employee Control, Monitoring and Surveillance

One of the most interesting points raised by the new telework law is the possibility for companies to install devices to track workers’ performance.

And, although the form and mechanisms allowed or not allowed are not stipulated, the telework law is clear with regard to the private aspects of the life of each employee, expressly stating that: “the company may adopt the measures it deems most appropriate for surveillance and control to verify the compliance of the worker and their work obligations and duties, keeping in its adoption and application the consideration due to their dignity…“.

How to avoid sanctions for non-compliance with the telework law?

According to the regulations, infringements can carry penalties of between 70,00€ and 225.018,00€ depending on the classification of the infringement, from minor to very serious.

In order to avoid sanctions, it is necessary to comply with the requirements imposed by law.

The rules to regulate telework and telework itself are here to stay, so if you have doubts about how to regulate them in your company or need advice on how to reach an agreement with your employees, contact the team of employment experts at Lawyers & Accountants now.

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