Legal alert No. 2 - April 2018
In this issue:
Law regulating teleworking
Law no. 81/30 March 2018 regulating teleworking, published in the Official Gazette no. 296 of 2 April 2018
We have summarized below the main provisions of law no. 81/30 March 2018 regulating teleworking (the “Law”).
The newly introduced legal framework enters into force within three days as of its publication, respectively on 5th of April 2018.
The Law regulates, inter alia: (a) the concept of teleworking; (b) the essential elements which need to be included under the individual labor agreement; (c) the specific obligation of the employer; (d) the specific obligations of the teleworker; (e) the specific aspects concerning the control of the teleworking activities; (f) sanctions.
The concept of teleworking
The telework represents a specific form of organizing the work by which the employee complies with the obligations specific to its position, activity or profession as follows: (a) in another place than the working place organized by his/her employer; (b) at least a day per month; (c) using information and communication technology; (d) and he/she is doing so regularly and voluntarily.
The parties consent has to be obtained with respect to:
· The fact that the respective employee is teleworking (expressly provided under the individual labor agreement);
· The way in which the working schedules is organized;
· The fact that the teleworker with full time contract is going to perform overtime.
The essential elements which need to be included under the individual labor agreement
Besides the elements regulated by the Labor Code, in case of teleworking, the individual labor agreement has to include specific provisions such as:
a) Expressly providing that the employee is teleworking;
b) Providing the period during which the teleworker carries out its activity at the work place organized by the employer, the place where the telework is performed, the time schedule during which the employer may control the activity of the teleworker, the way in which the working hours of the teleworker will be recorded, the parties’ responsibilities;
c) The measures to be taken by the employer in order to avoid having the teleworker isolated;
d) The conditions under which the employer pays for the expenses related to teleworking.
The specific obligation of the employer
The employer has specific health and safety obligations with respect to its teleworker, such as:
· Ensuring safe information technology means necessary for performing the work as well as ensuring the installation, periodical verification and maintenance of the working equipment (if the parties do not agree otherwise);
· Ensuring that the teleworker benefits from sufficient and adequate health and safety training.
The specific obligations of the teleworker
The teleworker has, inter alia, the following obligations:
· To comply with the health and safety legal framework and, specifically, to allow the employer, to the extent possible, to have access to the place where telework is carried out for the purpose of establishing and taking the necessary health and safety measures;
· To inform the employer with respect to the used working equipment, the conditions existing at the place where telework is carried out and to use only equipment which is not putting in danger his/her health and safety;
· To comply with the specific rules and restrictions established by the employer with respect to the used internet networks and with respect to the equipment which was provided.
The specific aspects concerning the control of the teleworking activities
Besides the right granted to the employer, under specific conditions, to have access to the place where telework is carried out, similar rights are also regulated in favor of:
· The representatives of the trade unions or the representatives of the employees with respect to applying and controlling the working conditions of the teleworker;
· The representatives of the competent authorities with respect to controlling the way in which the legal requirements concerning the health and safety as well as the labor relationships are applied.
If the place where telework is carried out is also the domicile of the teleworker, the access is granted only with the prior notice of the teleworker and provided that his/her consent is obtained.
The Law regulates various minor offences for breaches of obligations such as:
· the obligation to expressly provide under the individual labor agreement the fact that the employee is carrying out teleworking;
· the obligation to obtain the full time teleworker’s consent for performing overtime;
· the obligation to provide under the individual labor agreement the specific clauses regulated by the Law.
The minor offences regulated by the Law are sanctioned with fines between RON 10,000 and RON 2,000. The Law allows the sanctioned entity to pay half of the fine within 48 hours as of the date of the minutes ascertaining the minor offence or as of the date such minutes are notified.
Dragoș Radu, Partner – Head of Legal
Nicoleta Gheorghe, Manager – Head of Labor Law Practice
Radu și Asociații SPRL | EY Law
Bucharest Tower Center Building,
22nd Floor, 15-17 Ion Mihalache Blvd.,
Sector 1, 011171, Bucharest, Romania
Tel: (40-21) 402 4100, Fax: (40-21) 310 6987