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The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE
- In light of technological development that has opened up new and alternative avenues for employees to carry out their work, and to optimize the benefits of technology, employers and employees are encouraged to jointly adopt and implement telecommuting programs.
- These telecommuting programs shall be based on voluntariness and mutual consent.
- In adopting telecommuting programs, competencies, available technologies and resources, the nature of the work to be done, and other practical circumstances must be taken into consideration. (Sec. 1, D.O. No. 237-22)
Pursuant to the rule-making authority of the Secretary of Labor and Employment under Section 9 of Republic Act No. 11165 or the Telecommuting Act, and under Article 5 of the Labor Code, as amended, on September 16, 2022, DOLE has released Department Order No. 237 S. 2022, or the Revised Implementing Rules and Regulations of Republic Act No. 11165, otherwise known as the “Telecommuting Act”.
The new implementing rules and regulations intend to clarify and address concerns regarding telecommuting while protecting the rights of the employees and promoting their welfare “especially in the light of technological development that has opened up new and alternative avenues for employees to carry out their work, particularly telecommuting”. (Sec. 1, D.O. No. 237-22)
What are telecommuting arrangements?
DOLE Department Order No. 237 says:
A telecommuting arrangement refers to the agreement voluntarily entered into between the employer and the employee or a group of employees to implement a telecommuting program in accordance with these Revised Rules. (Sec. 3 (f), D.O. No. 237-22)
Guiding principles in application of labor standards to telecommuting
Considering the voluntariness and mutual consent of the parties, employers and employees alike are encouraged to adopt telecommuting arrangements, if applicable, provided that such telecommuting arrangements or program are guided by the following principles:
The law says:
- The terms and conditions of telecommuting shall not be less than the minimum standards, and shall not in any way diminish or impair the terms or conditions of employment contained in any applicable company policy or practice, individual contract, or collective bargaining agreement.
- Work performed in an alternative workplace shall be considered as work performed in the regular workplace of the employer.
- In accordance with the rules on working hours under Book III, Title I of the Labor Code, all time that an employee is required to be on duty, and all time that an employee is permitted or suffered to work in the alternative workplace shall be counted as hours worked.
- Telecommuting employees are not considered as field personnel except when their actual work hours cannot be determined with reasonable certainty.
- Nothing herein shall be construed as a limitation on the right of employers and employees to agree on hybrid arrangements where work can be performed in both the regular and alternative workplace, or to compressed workweek or staggered working time arrangements, or to other recognized forms of flexibility. Such arrangements may be incorporated in the telecommuting program. (Sec. 4, D.O. No. 237-22)
Fair treatment of telecommuting employees
Can an employer reduce the salary or wages of an employee, and give the employee less benefits than those working onsite?
No. The Telecommuting Act says:
“The employer shall ensure that the telecommuting employee are given the same treatment as that of comparable employees working at the time employer’s premises.” (Sec. 5, R.A. No. 11165)
Further, Department Order No. 237, series of 2022 says:
“The employer shall ensure that telecommuting employees are given the same treatment as those comparable employees working at the employer’s regular workplace. All telecommuting employees shall be covered by the same set of applicable rules and company policies, or by an existing CBA, if any. (Sec. 8, D.O. No. 237-22)
Rights of Telecommuting Employees under Department Order No. 237-22
Telecommuting employees shall:
(a) Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws, and/or CBA for authorized hours of work at home or an alternative workplace in accordance with the telecommuting agreement.;
(b) Have the right to rest days, regular holidays, and special non-working days;
(c) Have the same or equivalent workload and performance standards as those of comparable workers at the employer’s premises, provided that the parties may mutually agree to different performance standards that may be more appropriate given the location of the employer;
(d) Without additional cost, have the same access to training and career development opportunities as those of comparable workers at the employer’s premises, and be subject to the same appraisal policies covering these workers, including the qualification provided on the preceding item;
(e) Without additional cost, receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting;
(f) Have the same collective rights as the workers at the employer’s premises and shall not be barred from communication with the workers’ representatives.
The employer shall also ensure that measures taken, as much as reasonable possible, to prevent the telecommuting employee from being isolated from the rest of the working community in the company by giving the telecommuting employee the opportunity to meet, physically or through telecommunication, with colleagues on a regular basis and, when practicable, allow access to the employer’s premises and company information.” (Sec. 8, D.O. No. 237-22)
Telecommuting devices and equipment
Are devices and equipment used for telecommuting chargeable to the telecommuting employees?
No. DOLE Department Order No. 237 states that:
Facilities, equipment and supplies necessary to implement a telecommuting program and to enable the employee to perform his or her work in an alternative workplace, including expenses for acquisition, proper handling, usage, maintenance, repair and return thereof, are considered ordinary and necessary costs of the business of the employer. (Sec. 9, D.O. No. 237-22)
RELATED ARTICLE: What are the rights of an employee under R.A. No. 11165 or The Telecommuting Act of 2018?
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding taxation and taxpayer’s remedies, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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