Remote Work Regulation and Implementation

02.09.2021

Introduction

The practice of remote work, commonly referred to as “home office,” has become a widely used method in businesses around the world, especially during the COVID-19 pandemic. Many businesses have found that they can effectively conduct their operations through remote work and plan to continue using this approach even after the pandemic. By doing so, they aim to reduce office space and associated costs.

However, the remote work method has blurred the boundaries between employers and employees, leading to various discussions and debates. Amid these ongoing discussions, the Remote Work Regulation (“Regulation”), which had been in draft form for several years, was recently published and enacted by the Ministry of Family, Labor, and Social Services. (Official Gazette, 10.03.2021)

In this article, we will evaluate the practice of remote work in accordance with the Regulation and the rights and obligations of employees and employers in this context.

What is Remote Work?

Remote work, as defined by the Regulation, refers to “the performance of the employee’s duty to work within the scope of the work organization established by the employer at home or outside the workplace by using technological communication tools, and the employment relationship established in writing.” This definition was introduced into the Labor Law through an amendment in 2016. The Regulation includes this definition and further defines a “Remote Worker” as “the employee who performs all or part of the work by working remotely.”

The law does not limit remote work to working from home; it also encompasses work performed outside the workplace. With the definition of a remote worker in the Regulation, the legislator has determined that performing “all or part of the work” remotely is sufficient for establishing a remote work relationship.

For example, an employee who works from home for two days a week is considered a remote worker during that time and therefore, a remote work agreement must be signed with this individual.

In our opinion, since performing a certain part of the work outside the workplace is sufficient, sales representatives who have an office within the city limits where they operate but perform the majority of their work outside the office using technological devices would also be classified as remote workers. Consequently, remote work agreements would need to be signed with these individuals as well.

Remote Work Agreement and Transition to Remote Work

Employment relationships can be established directly through a remote work agreement, or the employment contract of an employee already working in the office can be converted into a remote work agreement through mutual consent of the employee and the employer. In both cases, it is stipulated by Article 5 of the Regulation that the agreement must be made in writing. The relevant article also specifies the matters to be included in the contract. These include the job description, method of performance, duration, and location of the work, matters related to wages and payment of wages, obligations regarding the tools and equipment provided by the employer, communication between the employer and the employee, and general and specific working conditions. The listed items are minimum requirements, and depending on the nature of the job, other matters may also be included in the contract. In practice, employees transitioning to remote work sign a “remote work protocol” in addition to their employment contract, and the terms of the remote work relationship are determined by this protocol.

For the transition to remote work, mutual agreement between the employer and the employee is required. However, if remote work is to be implemented at the workplace due to compelling reasons defined by legislation, the consent of the employee will not be required in this case, as stated in Article 14 of the Regulation. The definition of “compelling reasons defined by legislation” is not clear in this context. Although not explicitly defined in legislation, curfews announced by the government through directives should be considered as one of these compelling reasons. However, if remote work continues after the pandemic, the compelling reason for remote work will no longer be valid, and the consent of the employee should be sought.

Workspace and Provision of Work Tools in Remote Work

The focal point of discussions regarding remote work is the workspace and privacy. In traditional work settings, the workspace, where work takes place, is under the control and management of the employer. The employer takes necessary occupational safety measures in the workspace, maintains its organization, and bears the costs. However, in the practice of remote work, the place where the employee performs their work is their own home. The employee is responsible for organizing this workspace and covering the associated costs. This workspace is not only a workplace but also the most private area where the employee leads their life. This raises questions about whether the employer has the right to intervene in this space and, if so, to what extent. For example, if an employee working remotely has an accident at home, it will be considered a work-related accident, and the employer will be liable. However, can the employer be expected to take occupational safety measures in this workspace, or can the employer be granted the right to make arrangements in the employee’s home to ensure occupational safety?

Article 6 of the Regulation provides a provision on this matter and states, “If necessary, arrangements related to the place where remote work will be performed are completed before work begins. The method of covering the costs arising from these arrangements is determined jointly by the remote worker and the employer.” Accordingly, if deemed necessary, the employer will complete the arrangements related to the place where remote work will be performed before work begins. In our opinion, this provision is both legally problematic and quite meaningless. The employer cannot intervene in the employee’s home, which is the workspace of the employee working from home. The employer can only provide training to the employee on taking necessary precautions and make it mandatory for the employee to implement these precautions. In our opinion, a provision allowing the employer to take measures directly in the employee’s space would severely violate the privacy of private life and cannot be introduced either through the Regulation or the law; if it has been introduced, it should be annulled. The application of this provision to employees working remotely outside of their homes is also not feasible.

Regarding the provision of work tools, Article 7/1 of the Regulation is clear and straightforward: “Unless otherwise agreed in the employment contract, it is essential that the necessary materials and work tools for the production of goods and services by the remote worker are provided by the employer. The usage principles of these materials and work tools, as well as maintenance and repair conditions, shall be clearly and comprehensibly communicated to the remote worker.” Unless otherwise agreed in the employment contract, if the work tools are provided by the employer, a list of these tools indicating their costs at the time of delivery will be provided to the employee in writing by the employer. The provision implies that, unless otherwise agreed in the employment contract, the employee may provide the necessary materials and work tools for the production of goods and services. In this context, this provision stands out for defining a new and more flexible employment relationship, albeit one that may be disadvantageous to the employee. Thus, employers are allowed to reduce their costs at the expense of the employee.

Covering Production Costs

Before the Regulation was published, there were discussions about covering expenses arising from performing the work. Article 8 of the Regulation states that the determination and coverage of necessary expenses directly related to the production of goods or services arising from the performance of the work will be specified in the employment contract. While it is not clear what is meant by necessary expenses, we can say that expenses incurred by the remote worker, such as electricity and internet bills, due to remote work would fall into this category. The Regulation leaves the determination of these expenses and how they will be covered to the parties, introducing a flexible arrangement. However, it is important to clearly define the burdens and obligations that fall on each party in practice. Without clarity, there is a likelihood of disputes arising between the parties regarding their expectations.

Additionally, Article 414 of the Turkish Code of Obligations No. 6098, titled “Expenses,” states that when the employer requires the employee to work outside the workplace, the employer is obliged to cover the expenses necessary for the employee’s livelihood and all other expenses arising from the performance of the work. The continuation of this provision specifies that agreements where the employee partially or fully covers the necessary expenses will be considered invalid. It can be observed that this legal provision was not taken into account when drafting the Regulation, and it appears to be in conflict with this law article.

Determination of Working Hours and Communication

Another issue that arises with remote work is the determination of an employee’s working hours and accessibility. For an employee who used to perform their work within specified working hours at the workplace and continued with their private life after leaving the office, remote work blurs the line between their private and work life. Many employers assume they can reach employees working remotely at any time, and this practice is often observed. However, an employee performing their work remotely does not necessarily mean they are available at any time during the day. Remote employees, like other employees, have specific working hours, and any work performed outside of these hours would be considered overtime or extra work. This situation has also been discussed in European countries, especially in France, under the term “right to disconnect,” which can be translated to Turkish as “ulaşılamama hakkı.” In this context, Article 9 of the Regulation, titled “Determination of Working Hours,” makes it mandatory for the working hours of remote employees to be included in the employment contract. If the employee works outside the specified working hours, it will be considered overtime or extra work.

In addition to the question of when an employer can reach a remote employee, another question is how the employer will communicate with the remote employee. Article 10 of the Regulation states that the method of communication in remote work will also be determined between the employee and the employer. For example, if communication between the employee and the employer is to be conducted via email and SMS, the parties should agree on this matter. If the employer attempts to reach the employee through other means, and the employee does not respond, it will not constitute a breach of the employment contract. In our opinion, it would have been more appropriate to make it mandatory for the communication method to be included in the contract. The provision’s acceptance of verbal agreement between the parties has clearly disadvantaged the employee.

Protection of Personal Data

The protection of personal data held by employees in the context of remote working is another important consideration. In particular, data stored on the remote employee’s technological devices such as computers and phones can be at risk if these devices are stolen, lost, or damaged. In this regard, Article 11 of the Regulation stipulates that the employer is obliged to inform the remote employee about the company’s rules and relevant legislation regarding the protection and sharing of data related to the workplace and the work being done, as well as to take necessary measures to protect this data. According to this article, the employer will also specify the definition and scope of the data to be protected in the contract. This provision is significant because it allows the employer to quickly identify which data is held by the employee and the scope of a potential breach in the event of a data breach. In our opinion, the ability to remotely erase data on the computers and phones of remote employees in the event of a potential breach is one of the most important data security measures to be taken.

Occupational Health and Safety

The starting point for the debates surrounding the privacy of employees and the obligations of employers in remote working arrangements is occupational health and safety. It is undisputed that if an employee has an accident while performing their work at home, the accident will be considered a workplace accident. However, the obligations of the employer to prevent such accidents are a subject of debate. In this regard, Article 12 of the Regulation provides a general provision, but various inferences can be made from this provision. According to this, “The employer is obliged to inform the employee about occupational health and safety measures, provide necessary training based on the nature of the work performed by the remote employee, ensure health monitoring, and take necessary occupational safety measures regarding the equipment provided.”

The obligations of the employer in the provision include:

-Informing the employee about occupational health and safety measures,

-Providing the necessary training to the employee,

-Ensuring health monitoring of the employee,

-Taking occupational safety measures regarding the equipment provided.

As it can be understood from this, the only subject that the employer will take occupational safety measures himself is the equipment he provides. The employer is obliged to take the necessary measures regarding this equipment. In other matters, it will be sufficient for the employer to inform the employee and show the measures to be taken. Although Article 6 of the Regulation gives the employer the right to make the necessary changes in the workplace, it has been explained above that this provision is not applicable and is unlawful. The above-mentioned occupational health and safety provision introduced in the same Regulation determines the employer’s responsibilities in this regard and renders Art. 6 null and void.

Employers must provide training to employees who work from home regarding work accidents that may occur at home, inform the employee how to take precautions in this regard, and bear the costs if the employee takes such precautions. If the employee does not want to take such precautions despite the employer’s information and request, then it must be accepted that the employer’s liability has ended and the employee will be responsible for a possible accident. Otherwise, the argument that the employer can directly intervene in the employee’s home and take measures will be accepted.

Conclusion

1. The Remote Working Regulation came into effect in March 2021. This regulation, aimed at providing guidance on issues that were previously debated in practice, does not comprehensively regulate all the necessary aspects with its ambiguous and detailed provisions. In this context, the provisions in the remote working agreement between the employer and the employee will be crucial for matters not covered by the Regulation and the Law.
2. According to the Regulation, for an employee to be considered a “remote worker,” it is sufficient for them to perform part of the work outside the workplace. In this context, employees who work outside the workplace on certain days of the week or sales representatives who perform part of their work outside the workplace are also considered remote workers. Therefore, remote working agreements must be made with these individuals.
3. As a consequence of falling within the scope of the Remote Working Regulation, written remote working agreements must be concluded between employees and employers. The minimum requirements that must be included in this agreement are the job description, method of performance, duration, and location of the work, wage and payment-related matters, the employer’s provision of work tools, equipment, and maintenance obligations, and general and specific working conditions.
4. According to the Regulation, if necessary, the employer will complete the arrangements related to the place of remote work before work begins. In our opinion, this provision is legally questionable and, if applied, would violate the privacy of the employee’s personal life.
5. Regarding the provision of necessary work tools and covering production costs such as electricity and internet bills, according to the provisions of the Regulation, employers and employees will agree on resolution. In our opinion, these arrangements can be used to the detriment of the employee to reduce the employer’s costs.
6. While remote working is in place, employers’ responsibilities for data protection and occupational health and safety continue. Employers are required to take data security measures, inform employees about occupational health and safety measures, provide necessary training, and monitor employee health. However, in our opinion, employers cannot make changes to the employee’s home based on occupational health and safety provisions; they can only take precautions related to the tools they provide.