The regulation of remote work in the context of digitalization
Comparing the regulation of remote work in Mexico in contrast to ILO’s guidelines/policy pointers.
Traditionally, labor is performed under an employer at a specified workplace. Today, it's performed in many ways, and the traditional workplace is being substituted by the cyberspace workplace; the workplace created by the Internet and other digital technologies. The current low cost of the Internet and the existence of ‘cheap’ powerful computers make this type of workplace possible. This shift generates legal uncertainty but also the opportunity to develop new regulations on work. There may be new risks for liability and new obligations may arise. This, contrasted with traditional remote work, may turn many countries’ current legislation obsolete.
Within remote work, in many cases, job seekers search for a job or project, and then bid on taking that job (based on their qualifications) on a digital platform. This platform connects the job providers with the job seekers and thus generates a virtual office, regardless of the participants’ geographical location. On occasion, the platform receives the job provider’s payments and pays the job seeker/freelancer the agreed fee.
Workers who labor through a platform are not considered employees; they are generally called job seekers or freelancers, and employers are known as job providers. Job seekers or freelancers are self-employed and do not have a permanent labor contract with the person who provides work for them, thus in multiple contexts, they are excluded from the legal protection that traditional employees enjoy. They earn on the basis of the amount of work they do, not a fixed salary. In many instances, they work for several organizations and/or companies.
If remote workers do have a labor contract with their employer, all the legal protection that general employees enjoy applies to them — such as minimum wage and limited working hours per day. In some cases, as in Mexico, apart from general protection, remote workers who are recognized as employees by their employers (usually through the labor contract) enjoy special protection under statutory law.
The Mexican scenario
In Mexico, remote work is legally defined as “work executed habitually for an employer, in the workers’ address or in an address freely determined by the worker, without any supervision or immediate direction of the job provider.” In 2012, it was specified that work performed remotely, using information and communication technologies qualifies as remote work.
The employer in such a labor relation is that person who provides remote work. Having multiple simultaneous employers does not exclude the worker from special legal protection destined for remote work. Working conditions specifying the place of work, the quality and quantity of work to be performed, and the remuneration for performing such work have to be stated in the labor contract. This contract must be registered with the Labor Inspectorate, which may request alterations and/or additions.
Employers who provide remote work will have to be registered in a Remote Employer Register within the Labor Inspectorate. Employers also have to keep a register of remote workers, which must be available to the Inspectorate at all times. The Inspectorate will have the right to supervise, in order to ensure that regulations on remote work are being followed. The employer is to provide the worker with a book wherein personal data, wages, as well as methods and frequency of payments are recorded. Special obligations on employers include fixed rates of payment, providing materials, recording quantifiable losses in the workers’ book, and providing the Inspectorate with these details. Contractually, the use of intermediaries for remote work is not allowed.
Regarding working conditions, remote workers in Mexico are entitled to paid vacations (as general workers are) as well as the right to work stability which consists of compensation when fired without justification, or the right to be reinstated to their position. To establish a remote worker’s minimum wage, that for work of the same kind not done remotely should be taken into account. It cannot be lower. Apart from these special conditions, they enjoy the same perks as any general worker such as an annual bonus (aguinaldo), social security, one day of paid rest per week, paid vacations, maternity leave, subsidies, and collective labor rights.
These are all regulations enacted to protect workers and ensure decent working conditions. Such protection can, however, translate into a strict supervision of remote work, which can affect and restrict it. Furthermore, workers without a labor contract are excluded from such protections to an extent.
Evidently, some aspects do not adapt to the current realities of remote work. In Mexico, for example, the remote work contract has to state where work will be performed while the remote workplace, more often than not, is constantly shifting.
A solution to outdated legislation like Mexico’s has been proposed by the ILO and Eurofound after evaluating working conditions of remote workers in the main industrialized countries. These organizations provided policy pointers for member countries to carry out.
The ILO and Eurofound point out that examples of remote work refer to work carried out at home. They do not cover informal labor of this kind, shifting remote workplaces, or overtime limitations so that minimum resting periods can be adhered to. Countries have to ensure there are minimum health and safety prevention mechanisms and principles outside of the traditional workplace. Since labor is changing, so should the legislation. It’s important that new occupational health and security features regarding how, when and where work is performed today are introduced into local regulations.
They highlight the importance of governmental initiatives and how national and sectional conventions are key to instituting the conditions needed to address the challenges both companies and workers face regarding remote work. In addition, the various distinct types of remote work are to be carefully considered when taking action in accordance with all of these pointers.
In Mexico, there is a lot of space for overall improvement in the current legislation on remote work. For effective protection of workers’ rights and not restricting this type of work, following policy pointers, as those provided by the ILO, Eurofound, and the European Agency for Safety and Health at work, is essential.
Jose Pablo Hernandez is a licensed lawyer attached to the Faculty of Law at UNAM (National Autonomous University of Mexico). He also works at UNAM’s Legal Research Institute in the department of Labor Law. He does private consulting on labor matters and has participated in ILO projects for the Latin American and Caribbean regions. For the past five years he’s been researching special kinds of labor, especially in the Mexican context.
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