More than two years ago, the largest pandemic in modern times began, caused by SARS-coV-2 (COVID-19). This pandemic, in the eyes of many of us, began as something distant, as something that would take months to reach Mexico or that would probably not affect us at all, a thought that changed abruptly in the last days of February 2020, when the first case of COVID-19 was detected in Mexico.
Shortly after, this virus would lead to the declaration of a worldwide alert by the World Health Organization, and countries began to take protective measures for their populations, which is how the so-called “quarantine” came about. Before returning to the new normality, this quarantine forced us to make our homes an office, a school and a place to rest. Our parents and siblings would no longer only be our family, but also play the roles of teachers, co-workers and playmates.
The quarantine resulted in a great number of consequences. Because of the quarantine, many businesses had to close, and many jobs were lost, many others were suspended, and while activities were being resumed, where was the income for basic necessities?
It was because of this great need to resume work activities that two institutions were used. The first, already foreseen by the Federal Labor Law (“LFT”, for its acronym in spanish), “home-based work” and one that derived from the pandemic, which was “Telework”, as of January 11, 2021, after a reform to the LFT.
Both institutions are colloquially referred to as “home office” and are commonly confused, since both, as remunerated and subordinate activities, are performed by workers who perform their work in places other than the employer’s establishment (where work is usually performed). However, it is important to note that both figures have distinctive points that we will analyze below.
The first of the differences consists in that the work-based home is performed without an immediate supervision and direction of the employer, likewise, the worker can be helped by the members of his family for the accomplishment of his labors; on the other hand, in the telework is primarily the use of technologies of the information and communication precisely so that there is a contact and command between the worker and employer.
As a distinguishing feature of home-based work, in addition to what has already been mentioned, the legislator also considered as such the situation in which the employer sells raw materials or objects to his worker or workers, so that they transform them at home and subsequently resell them to their employer. This provision allows the recognition of the quality of worker to the person who performs these subordinate and remunerated activities, which does not allow them to be confused with service providers.
Regarding the remuneration of work at home, the worker has two essential protections in his salary, since the law establishes that these workers cannot be paid less for similar work performed in the company, and in addition, a minimum salary is fixed for the different work at home by the National Commission of Minimum Wages, taking into consideration market prices, the nature of the work, its quality and the estimated time to perform it.
Teleworking has as another of its distinctive points the time, if the work activities are performed less than forty percent of the time at the worker’s home, it cannot be considered as teleworking; also, in case of working on-site, in order to change to the teleworking modality, it must be stated that the change is voluntary and must be made in writing.
Now, how does telework and home-based work impact employers?
Home-based work imposes certain obligations on the employer, such as: (i) such as registering in the “Register of home based work employers”, (ii) delivering to the worker the copy of the working conditions that are in writing; (iii) keeping a record book of their home workers; (iv) delivering to their workers a foliated and authorized notebook; and v) they must also comply with the special obligations set forth in Article 324 of the LFT, which in a few words establishes that they must fix the wage rates (respecting at all times the protections assigned by law as mentioned above), provide the workers with the materials and tools, and provide the authorities indicated by the LFT with the information requested by such authorities.
For its part, telework imposes special obligations on employers which are contained in article 330-E of the LFT, such as providing, installing and maintaining the equipment used for teleworking, assuming the costs derived from the work, keeping a record of inputs delivered to workers, implementing mechanisms that preserve the security of information, respect the right to disconnection of workers, and ensure the training and counseling mechanisms that are necessary to ensure the adaptation of workers to the technologies.
In this regard, in the telework modality, it is also applicable to employers and workplaces the NOM-037-STPS-2022, which establishes obligations of mandatory compliance and some other non-mandatory provisions, that have a character of recommendations, which helps with the determination of safety conditions in the development of teleworking.
After the pandemic, these figures are increasingly useful, because although many people´s life were complicated by the modality in the beginning, it is also true that many others were granted a better quality of life. Teleworking and home-based work, in most cases are carried out informally and although they are already regulated, the implementation of the law is still in its early stages. In conclusion, we can say that even when the regulation of these figures is little applied by employers and workers, they are used by millions of people in the world, so it is true that they open the way towards a new reality.