Telecommuting

1. Concept

As used in R.A. 11165, the term “telecommuting” refers to a work from an alternative workplace with the use of telecommunications and/or computer technologies. (Section 3, R.A. 11165, Telecommuting Act)

Telecommuting – refers to a work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies. (Section 2[b], DOLE Department Order No. 202, Series of 2019, Implementing Rules and Regulations of R.A. 11165)

Alternative workplace – refers to a location other than the regular workplace. (Section 2[a], Ibid.)

Telecommuting agreement – refers to the mutual consent of the employer and the employee in the implementation of a telecommuting work arrangement based on the telecommuting program of the company, Collective Bargaining Agreement (CBA), if any, and other company rules and regulations. (Section 2[c], Ibid.)

Telecommuting employee – refers to a person who is on a telecommuting work arrangement. (Section 2[d], Ibid.)

Telecommuting program – refers to a set of guidelines and rules governing the implementation of a telecommuting work arrangement. (Section 2[e], Ibid.)

2. Telecommuting Program

An employer in private sector may offer a telecommuting program to its employees on a voluntary bases, and upon such terms and conditions as they may mutually agree upon: Provided, That such terms and conditions shall not be less than the minimum labor standards set by law, and shall include compensable work hours, minimum number of work hours, overtime, rest days, and entitlement to leave benefits. In all cases, the employer shall provide the telecommuting employee with relevant written information in order to adequately apprise the individual of the terms and conditions of the telecommuting program, and the responsibilities of employee. (Section 4, R.A. 11165)

a. Contents

To effectively implement the telecommuting program, the employer and employees shall adhere to and be guided by the mutually agreed policy or telecommuting agreement which stipulates for the following provisions, including but not limited to:

1) Eligibility;

2) Applicable code of conduct and performance evaluation and assessment;

3) Appropriate alternative workplace/s;

4) Use and cost of equipment;

5) Work day and/or hours;

6) Conditions of employment, compensation, and benefits particularly those unique to telecommuting employees;

7) Non-diminution of benefits;

8) Occupational safety and health;

9) Observe of data privacy policy;

10) Dispute settlement; and,

11) Termination or change of work arrangement. (Paragraph 2, Section 3, DOLE D.O. 202-2019)

b. Termination or change of telecommuting work arrangement

The employer or employee may terminate or change the telecommuting work arrangement, in accordance with the telecommuting policy or agreement without prejudice to employment relationship and working conditions of the employee, at no cost to the latter. (Paragraph 3, Section 3, Ibid.)

c. Effect on existing agreements and Company practice or policy

The terms of any similar voluntary agreement between an employee and an employer, such as existing company practice or policy allowing work from home or similar arrangements providing substantially similar or higher benefits, entered before the effective date of Republic Act No. 11165 and this Rules shall not be impaired, provided that the employer shall duly notify the DOLE of such agreement. (Section 9, Ibid.)

3. Administration of telecommuting

a. Responsibility on the parties

The parties to a telecommuting work arrangement shall be primarily responsible for its administration. (Section 7, R.A. 11165, Telecommuting Act)

1) In case of differences in interpretation

In case of differences in interpretation, the following guidelines shall be observed:

1) The differences shall be treated as grievances under the applicable grievance mechanism of the company;

2) If there is no grievance mechanism or if the mechanism is inadequate, the grievance shall be referred to the regional office of the Department of Labor and Employment (DOLE) which has jurisdiction over the workplace for conciliation; and,

3) To facilitate the resolution of grievances, employers shall keep and maintain, as part of their records, the documents proving that the telecommuting work arrangement was voluntarily adopted. (Section 7, Ibid.)

b. Responsibility on the employers

1) Notice and monitoring

The employer shall notify the DOLE on the adoption of a telecommuting work arrangement, by accomplishing the DOLE prescribed report from and submitting the same in print or digital copy to the nearest DOLE Field Office or Provincial Office having jurisdiction over the area where the principal office is located. (Section 7, DOLE Department Order No. 202, Series of 2019, Implementing Rules and Regulations of R.A. 11165)

If the employer has branches or operational units outside the region of its principal office, each branch or operational unit shall also submit its respective report to the nearest DOLE Field or Provincial Office having jurisdiction over the branch or operational unit. (Paragraph 2, Section 7, Ibid.)

4. Data Protection

a. Concept

The employer shall be responsible for taking the appropriate measures to ensure the protection of data used and processed by the telecommuting employee for professional purposes. The employer shall inform the telecommuting employee of all relevant laws, and company rules concerning data protection. (Section 6, R.A. 11165, Telecommuting Act cf. Section 5, DOLE Department Order No. 202, Series of 2019, Implementing Rules and Regulations of R.A. 11165)

1) Minimum standard

The employer and the employee shall agree on minimum standards that will protect personal information and shall utilize available technologies that promote security and privacy. (Section 5, DOLE D.O. No. 202-2019)

2) Measures by the employer

Measures such as, but not limited to, disabling of hardware, Universal Serial Bus (USB) access, and external cloud-based storage can be taken by the employer. (Paragraph 2, Section 5, Ibid.)

3) Responsibility of the employees

The employee shall commit to the company’s data privacy policy and ensure that confidential and proprietary information are protected at all times and utilized only in accordance with the requirements of the employer (Paragraph 3, Section 5, Ibid.)

The telecommuting employee shall ensure that confidential and proprietary information are protected at all times. (Section 6, R.A. 11165)

4) Data Privacy Act, suppletory application

For this purpose, the provision s of the Data Privacy Act of 2012 shall have suppletory effect. (Paragraph 2, Ibid. cf. Paragraph 4, Section 5, DOLE DO No. 202-2019)

5. Fair treatment

a. Concept

The employer shall ensure that the telecommuting employee are given the same treatment as that of comparable employees are given the same treatment as that of comparable employees working at the time employer’s premises. All telecommuting employee shall:

1) 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 collective bargaining agreements;

2) Have the right to rest periods, regular holidays, and special nonworking days;

3) Have the same or equivalent workload and performance standards as those of comparable worker at the employer’s premises;

4) 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;

5) Receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting; and,

6) Have the same collectible rights as the workers at the employer’s premises, and shall not be barred from communicating with workers’ representatives. (Section 5, R.A. 11165, Telecommuting Act)

1) Opportunity to meet colleagues

The employer shall also ensure that measures are taken 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 with colleagues on a regular basis, and opportunity to meet with colleagues on a regular basis, and allowing access to company information. (Paragraph 2, Section 5, Ibid.)

References

▪ Republic Act No. 11165, a.k.a. Telecommuting Act

▪ DOLE Department Order No. 202, Series of 2019, Implementing Rules and Regulations of R.A. 11165