- ARTICLE: How can teleworking abroad be regulated?
How can teleworking abroad be regulated?
The teleworking boom resulting from the health crisis has changed the way work is organised within companies and the habits of employees. Teleworking is now tending to become a new and fully accepted way of work organisation for companies and employees.
Some employees have found in teleworking the freedom to work from anywhere in France or abroad. However, this freedom of movement does not seem to be compatible with the status of employee, which implies the existence of a subordinate relationship with the employer expressed through the employment contract, in which the place of work is a substantial element. In practice, it requires the agreement of both parties to modify it. Nevertheless, employers are increasingly faced with cases of employees teleworking from abroad without being informed in advance.
It seems that labour law had not foreseen this phenomenon, which today puts employers in a situation of legal insecurity regarding their own obligations, particularly in terms of health and safety protection for employees, and those of the company in terms of social and fiscal protection.
Indeed, until now, the international mobility of employees was regulated either in the context of secondment, expatriation, or work-related travel.
However, none of the existing texts mention employee telework from an international perspective.
What should the employer do if he learns that one of his employees wants to telework or is already teleworking from abroad?
The first thing to do is to check whether the provisions of the employment contract and the agreements currently applicable in the company concerning telework allow for mobility abroad. In the absence of this, the employee’s employment contract will have to be modified.
Then, it is preferable to define the rules and framework applicable to telework on the national territory and, possibly, abroad (list the cases of recourse to telework, whether regular, occasional, or imposed by exceptional circumstances, its implementation, the conditions of control and regulation, of return to the workplace, the obligation of information by the employee, etc.)
What is the status of the employee who teleworks abroad?
The absence of specific regulations makes the status of the teleworker unclear for foreign host countries.
This raises the question, apart from intra-Community movements, of the formalities with the immigration services in the host country (visa, residence permit).
In terms of social protection, European law, in particular EC Regulation No. 883/2004, imposes the principle of the employee’s affiliation to the social security system of the country in which the activity is physically performed. If the entire activity is performed in France, the employee remains affiliated to the French social security system.
However, there are exceptions to this principle which must be analysed on a case-by-case basis and which could lead the employer to register locally. In addition to these rules, each country operates according to its own law and may require the teleworker to subscribe to a local insurance system.
Ultimately, telework from abroad requires companies to adapt their agreements and employment contracts which can lead to complex situations which need to be very carefully considered in advance.
Digilaw: The Digilaw team is pleased to announce its collaboration with HEC Junior Conseil for its launch. In a coordinated and joint effort, Digilaw will be tested with 1200 prospects.
CSR training: This year again, Nathalie Cazeau will have the honour of giving a lecture to the students of the MBA/Master 2 Business Law and Management of the University of Paris II Panthéon-Assas.