Employment Law Series: 03 Workplace Practices in Labor Law
The global pandemic has dramatically altered work practices, and many of these changes are expected to be long lasting. One such practice is remote working. The increasing popularity and need for remote working, particularly in the last two years, has been noticed by the authorities leading to numerous new regulations. Considering that digitalization and becoming part of an online network is inevitable, the rapid uptake of remote working by white-collar employees and their adaptation to this system has made their transformation into “digital-collar employees” unavoidable.
The rapid shift, which started with the positive aspects of remote working for employers and employees, has left its mark on an environment where negative impacts including ethical, legal, and employment-related difficulties are also evident. One negative consequence is the disappearance of the distinction between work and private life, and the uncertainty surrounding working hours that has grown into a significant problem for employees. To prevent this situation, a remarkable concept, the "right to disconnect”, has been offered as a solution.
The right to disconnect can be defined as an employee's right to disengage from work outside of working hours and to refrain from responding to work-related notifications such as e-mail or other messages. In a remote working culture, there is ‘a need for an employer to respect a person’s right to disconnect’. In connection with this definition, to maintain an ethical work culture, an employee should not be penalized for refusing to attend to work matters outside of normal working hours. The European Parliament considers the right to disconnect as a fundamental right that enables employees to refrain from work-related tasks such as phone calls, e-mails, and other digital communication outside of working hours.
An analysis of 3.1 million people's e-mails and meetings in 16 global cities by Harvard University showed that the average workday increased by 8.2% or 48.5 minutes in the first weeks of the pandemic. In the continuation of the corresponding research, it was stated that employees coped with more interruptions at home and sent 8.3% more e-mails outside of working hours. According to data from business support company NordVPN Teams, the average time a remote employee logs on to their computer in the UK, Austria, Canada, and the USA has increased by more than two hours a day since the coronavirus crisis. A Eurofound survey reported that 27% of remote employee respondents work in their spare time to meet job demands.
Teleworking and ICT-based mobile work practices existed in different forms across various sectors and professions before the pandemic, however, due to the rapid spread of these practices throughout the world and with the changing nature of the work environment the need for concrete solutions has increased and actions have been taken accordingly.
Today, one of the key points is that the law should have the speed and competence to keep up with the pace of change. It is important to get to the root causes of change in technological, social and environmental conditions and to take action accordingly by means of the law and its components.
The first studies regarding the subject were initiated by France in 2016. According to the French Labor Law which entered into force on 1 January 2017, companies are required not to impose any criminal sanctions should employees exercise their right to disconnect within companies of 50 or more employees. France demonstrated that the purpose of the law is to ensure that employees' non-working hours, vacation times, personal and family life are respected. The report, which has pioneered the law and was prepared by the French Minister of Labor, acknowledges that a "one size-fits-all solution" is not feasible, and states that negotiated rules and protocols should be implemented at company level. The report also highlights the importance of negotiations between employers and employee representatives to find a balance between employees’ need to disconnect and the competitive needs of companies, according to the specific situation of each company. France's leadership in this matter has inspired other countries. In Italy, labor law states that to exercise the right it must be defined in a written contract between an employee and employer and the boundaries of the obligations of both parties must be determined. The German Confederation of Employers' Unions partnered with the German Trade Union Confederations and the Federal Ministry of Labor and Social Affairs to develop regulations that meet the needs of employees and employers, and as a result companies such as Volkswagen and BMW have pioneered the recognition of the right to disconnect. In Ireland, a detailed regulation entered into force on 1 April 2021. In this context, the principles that companies are obliged to comply with are as follows:
In addition to countries’ local regulations, the European Parliament presented a report in January 2021 including legislative proposals. As demonstrated in the report, which was accepted by the European Parliament with 472 votes, it is undeniable that working from home has positive impacts on matters such as providing work flexibility, and protecting employment during the Covid-19 crisis. Nevertheless, working from home, combined with long working hours and employers’ greater demands, causes employees to face more problems such as anxiety, depression, burnout and other mental and physical health issues. Currently, there is no specific law regarding an employee's right to disconnect from digital tools including ICT for business purposes. Yet, to reduce the negative impacts, all member states should embrace regulations in their jurisdiction which will allow them to impose sanctions on employers who do not comply.
With the development of technology and the reduction in the need for employees to actually be in the office, the concept of remote working was regulated in 2016 within the framework of Labor Law No.4857 (“Law”). To the extent that the characteristics of the work are appropriate, the work organization can be designed by employers in accordance with the principles of remote working. In this context, the principles regarding remote working have been regulated within the scope of the Remote Working Regulation (“Regulation”) published in the Official Gazette No.31419 dated 10 March 2021, and the boundaries of the business relationship between the employee and the employer have been clarified.
According to the regulation, the time interval and duration of remote work should be specified in an employment contract. Additionally, it has been regulated that working hours can be decided by the parties, if they comply with the legislation. If overtime work is expected, an employee's consent is required upon the employer's written request. Remote employees and employers should mutually decide the conditions of work-related communications. Still, the Regulation is ambiguous on many issues and does not determine the right to rest. For this reason, it is crucial to make a clearer and more specific regulation regarding the right to rest during remote working.
Article 417/1 of the Turkish Code of Obligations No. 6098 regulates the obligations to protect an employee's personality, respect the employee, and maintain order in accordance with the principles of honesty in the workplace. An employer's failure to exercise due care in fulfilling these obligations can negatively affect their control over employee behavior with employee tracking systems and may result in maintaining communication without complying with contracted work hours. Such employer behavior can cause the elimination of the right to rest and can harm the personal rights of employees.
There is no direct regulation regarding the right to disconnect within the scope of Turkish Law. Nevertheless, in today's conditions, it is clear that other regulations in Turkey should be evaluated for any association with the right to disconnect. In this context, the right to rest should be taken into consideration. Since it is not feasible to consider working and rest periods independently from each other, it is regulated in Article 50 of our Constitution that employees have the right to rest as a requirement of the social state understanding. For this reason, it can be said that there is a right to disconnect within the scope of an employee's right to rest outside of the working hours determined in an employment contract, although it is not explicitly regulated in our jurisdiction.
It should be highlighted that if it is essential to reach an employee outside of working hours due to the nature of the work, the right to disconnect should be regulated especially in terms of additional rest periods.
Nevertheless, if an employee decides to remain accessible via online communication tools in cases where there is an option to disconnect within the scope of the right to rest, failing to respond to an employer’s communication requests by claiming the right to disconnect will no longer be a consideration.
One of the most crucial principles of business ethics is not to be limited to legal regulations, but to analyze the risks in the current circumstance and implement a best practice model for risk analysis and policies within an organization proactively. Business ethics is defined as the discipline of “doing the right thing in every situation” for the company, employees, and other stakeholders in any situation.
In this context, although there is no obligation imposed on employers in terms of the right to disconnect in Turkish Law, companies should implement a compliance program related to the right to disconnect as it is a regulation in accordance with the spirit of the law and plays a major role in establishing a corporate culture that respects the private life of employees while taking into account their physical and mental health.
Compliance programs are necessary for a respectful and sustainable workplace. An inefficient compliance program will not only fail to meet the needs of employees but will also immediately affect the success of the company. In order to apply an efficient compliance program:
Efficient implementation of a compliance program should not only cover internal processes. For example, exit interviews should be organized to understand the root causes prompting employees to quit. If an employee is leaving the job because of non-compliant behavior, the violation processes within the scope of the compliance program should be reviewed and the source of the problem should be investigated. As a result of investigations, the necessary actions and precautions should be taken to prevent the recurrence of a situation.
One of the most crucial features of an effective compliance program is to ensure that it is constantly open to change and improvement and can be shaped according to the necessities of work life. A living compliance program should respond to the dynamics of the company, industry, and line of business and should be updated periodically. Obsolete and outdated compliance programs will lose their effectiveness and can cause damaging results for the company and employees. These results can occur in various ways such as the risk of loss of reputation, sectoral competition risks, and risks of internal misconduct or unethical behavior. Therefore, employees should be informed of each update and change, and if necessary, these should be reinforced and supported with training.
Compliance programs need to be supported by internal policies to ensure their effective implementation. While these policies should include provisions regarding an employer’s measures to address the right to disconnect such as guidance being given to company managers for the correct tone and sense of urgency to use when communicating with employees out of hours, they should also outline the obligations and expectations for employees and state the requirements for communicating out of hours. They should be drafted with a proactive approach in which the responsibilities imposed on employers and employees are followed, reports regarding best practice within the company are created and an internal audit mechanism is established. By doing so, employees are assured that they are performing their duties in an ideal remote working environment.
The right to disconnect, which should be included in company policies, should be clearly stated so that the balance between the employee and employer is maintained. For employees to raise concerns about the right to disconnect, companies should have a procedure in place in which employees are offered impartial guidance. In this regard, employers should include both formal and informal mechanisms for addressing employee concerns.
To prevent disruption to business operations, an employee can be obliged to notify an employer if they wish to exercise the right to disconnect. In this way, the employer can create a new action plan without delay. Furthermore, in a globalized business life, the status of working hours and the scope of the right to disconnect when employees are in different time zones are among the issues that can be included in compliance policies setting out clear guidance for disconnecting and expectations for responding to digital communications.
The implementation of such behavior policies will undoubtedly influence companies positively with regard to reputation management. It is critically important that the opportunities offered in the working environment should significantly distinguish a company from its competitors, especially if Human Resources departments are to attract qualified and efficient employees in their recruitment processes. Consequently, adopting a behavior policy regarding the right to disconnect is a key point that companies should take into consideration from a legal perspective in order to maintain the best possible business operations.
With thanks to Ece Mert for her assistance on this article.