An initiative called the Teleworking Law establishes six modalities of this type of work modality, as well as specific obligations for workers and employers, who in any case must agree when defining contractual obligations.
In the bill already ruled positively in Congress, the initiatives identified as 5764 and 5781 were unified, which on the same topic were presented in 2020, during the first year of the covid-19 pandemic.
The legal framework was approved in the first debate in November 2021 and taken up in the second debate by the current legislature in the last week of February 2024. However, sources consulted indicate that it is necessary to hold a discussion with expert sectors in labor legislation. and with those affected, which for the most part would be private companies.
Opinions about its content and scope are varied. There are criteria in which it is considered that what is already established in the Labor Code is sufficient or that, in any case, it must be developed within the same Code. Other people consider that having a specific law provides more certainty to the sectors for its application.
The modalities
According to article 4 of the bill, 6 types of teleworking are established, divided into two classifications: according to the place where they perform The tasks can be:
- Autonomouswhich is carried out at the teleworker’s home or in a specific place.
- Mobile, which is itinerant.
- Y supplementarywhich on certain days will adopt the autonomous or mobile modality and on other days in person.
Three modalities are also classified according to work day:
- Connectedwhich is the effective working time in which the teleworker remains under the orders of the employer, permanently connected and subject to any form of control.
- Disconnected, when it remains under the orders of the employer and carries out its activities with a non-permanent connection during the work day.
- Y, Partialwhich is the time determined voluntarily in the employment contract.
On the other hand, article 5 states that teleworking is voluntary for both the worker and the employer. Both parties may agree in writing to modify or revoke the modality in the established terms, without implying a change in the substantial conditions of the employment relationship, and under compliance with current labor legislation.
Furthermore, the initiative establishes that the purpose of the law is to promote and regulate teleworking as a form of work and to stimulate the generation of employment and the modernization of labor relations, through the use of technology, and that the provisions They are applicable to labor relations in both the public and private sectors.
Regarding the working hours, it does not specify them and states that it can be carried out in the parameters established by the Constitution and current legislation, as well as the individual work contract. However, it indicates that regardless of the work day limit “the teleworker is guaranteed the right to disconnect for twelve (12) continuous hours.”
Postures and analysis
Fanny D. Estrada, director of institutional relations of the Guatemalan Association of Exporters (Agexport), said that the work-at-home modality is being created, which somewhat alleviates mobility in a city like Guatemala where many hours are spent in transit.
“The central objective of having a law of this type is to regulate the employment relationship and the responsibility of both parties, where it can be applied. This modality can be autonomous or itinerant and, in addition, it is important because it can also be applied part-time, which can be a great benefit,” he added.
The executive says that it must be clear that schedules must be met and companies can establish mechanisms with technology that facilitate this type of control, and another important part is that it is voluntary and both parties have the right to return to in-person activity.
Another point that he described as relevant is that the right to disconnect for 12 continuous hours is guaranteed, “because it is not convenient for a person to be connected for more than 12 hours.” D. Estrada said that one of the benefits for the country is that it provides legal certainty to the labor relations that are developed in this modality.
Asked if they consider it necessary to establish a teleworking law, the board said that there are two opinions: some think that the Labor Code is sufficient, and others consider that labor relations are changing due to technology and telecommunications.
“We think that in the world of the most modern relationships this is a very useful tool and it is good to establish the conditions for both parties,” he expressed.
However, he mentioned that aspects such as work spaces at home must be clarified; the supervisory evaluation of the worker’s performance; confidentiality and proper handling of information; schedules, days and risks.
Finally, he emphasized that all these regulations must be consulted with those who are going to use them. “These modalities are convenient for the worker and for urban mobility, but legislation cannot be passed without first seeing how it will impact the affected parties,” he said.
Separately, Luis Linares, an expert in labor issues at the Association for Research and Social Studies (Asies), explained that the proposal must return for discussion because it was prepared without taking into account the concepts of Guatemalan labor legislation and creates confusion regarding definitions. , in addition to the fact that the work schedules established in current law could be violated.
It refers that self-employed teleworking is mentioned as a worker who works from home or a telecenter, but that the second word is used in the country to define independent or self-employed work, which could cause confusion regarding the employment relationship between employer and worker.
Linares believes that the Labor Code already regulates aspects related to teleworking in Chapter Three of Title Four, which refers to special regimes such as home work. Furthermore, instead of creating isolated laws like this proposal, this topic should be developed within the Code itself.
“So what must be done is to avoid the dispersion of laws, because the idea of codes is to have the regulation of the same subject integrated into a single legal body. In addition, it must be remembered that not all home work is teleworking, but that it is only one modality.”
Then, he suggested that the concepts of connected, disconnected and partial teleworking be clarified to avoid violating the work hours established by the Code, since it may cause only the hours that are connected to the computer within the work to begin to be counted. work hours, and be told that you have to leave an hour later.
On the other hand, it recommended establishing a non-control form that is not so invasive and clarifying under what conditions the equipment is delivered to the worker and taking into account the conditions and wear and tear due to use.
Linares believes that the tripartite National Commission on Labor Relations, freedom of association, nor the Ministry of Labor (Mintrab) was not consulted, to which Prensa Libre requested its position, but did not respond.
Rights and obligations
The initiative clarifies that the law only modifies the organization and the modality in which work is carried out, so it does not affect the obligations, rights and other labor guarantees recognized in current national regulations, according to article 9.
And they will enjoy the rights and obligations of social security in the same way as in-person workers, receiving equal treatment in matters of remuneration, training, education, access to better job opportunities and others, according to articles 14 and 15.
However, two types of special obligations are created, for the worker and for the employer:
The employer must provide the teleworker with the equipment, tools, programs, platforms, systems and any other type of information and communication technology essential for their work and the training for its proper use.
In cases where the employment relationship takes place in a specific telecentre, occupational health and safety conditions must be guaranteed. The employer is responsible for informing the teleworker about the entity’s data protection policies.
The teleworker must preserve and return the equipment provided by the employer in good condition, and protect the confidentiality and proper management of the information used to provide their services.
You must also inform the employer about the health and safety risks posed by your work in the telecenter where it is carried out. The telecenter is the physical space that has the necessary equipment and tools for the teleworker to carry out their activities.
Contracts
Contracts must meet the requirements established in the Labor Code and other current provisions.
If there is already a contract signed prior to the adoption of the teleworking modality, it must be modified, establishing at least this information and conditions: address of the telecenter (place where autonomous teleworking will be carried out); description of the equipment, tools, programs, and others that the employer provides, computer security conditions, data protection and confidentiality.
Also occupational health and safety measures; scope of responsibility regarding the custody, protection and protection of work equipment and the management of information; determine the teleworking modality; the specific rights and obligations and methods of monitoring compliance with the agreed working day, and others.
Modifications to contracts must be registered in the Mintrab.
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