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How to deal with a Telework Law to not telework and with a rooted presenteeism

Who does not remember the headlines of the vast majority of the media a year ago with the famous phrase: “Teleworking is here to stay”? Those of us who at that time lowered our expectations and explained that that phrase, far from being true, was a mere newspaper headline that had to be quarantined, were little less than the resistance.

What has really happened so that telework figures are falling and in many cases (except in some sectors, such as technology) they are returning to a mass return to the offices? The reasons are several, but mainly two: an unfavorable work environment (Law 10/2021, of July 9, on distance work) and a culture that is still very presentist, rooted in many organizations in Spain.

Go ahead, no law changes the leadership style of a company and not even a pandemic ends presenteeism. After the vortex of Covid-19, if the leadership style of a company is eminently presenter, the return to the offices is assured.

If to that (presenteeism) you add a work framework that instead of encouraging, disincentives teleworking, the cocktail is explosive.

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Why the Telecommuting Law discourages teleworking

In my personal opinion, due to the following factors:

  1. The great stumbling block, the famous 30% percentage (in a reference period of three months) that forces formalize the distance work agreement. Most companies without a prior pre-Covid19 telework culture will not look for the returns and will try not to exceed that 30%. That means roughly (although you have to look at the hours of the agreement) teleworking a maximum of 1 day or 1 day and a half a week. And this, from the level of strategic management of people, is not a “real” telework model.
  2. One of the many points to include in the telecommuting agreement is the percentage and distribution between face-to-face work and remote work. This is a drag on real flexibility (and not just from a company point of view, but for the employees themselves). For one reason: in a flexible telework model, it could be the case of an employee who wanted to telework for two weeks and one not or one month and not another, decide on the fly … (something that certainly existed in companies with different cultures). settled teleworking and smart working). This, with the rule in hand (set a percentage x), is a huge handicap.
  3. Another point that must be recorded in the distance work agreement is the remote workplace chosen by the worker for the development of remote work. This makes a flexible teleworking model very difficult (teleworking from the beach, from the parents’ house, from the town …). In fact, there are already very restrictive agreements with this issue, for example expressly regulating clauses like this: “People in remote work and telework, while they are providing services outside the workplace and as long as it is within the established hours, will be permanently locatable and available. Likewise, they must go to the work center that the company management establishes at all times, whenever required by their hierarchical superiors, in order to adequately coordinate the work activity to be carried out “.
  4. The Teleworking Law does not clarify fundamental aspects, such as the issue of compensation of expenses. In fact, the conventions that already regulate this issue contain disparate ranges and regulations. For example, € 35 gross per month for «distance work compensation » in the XX Collective Agreement of the Chemical Industry; 25 gross euros per month for each month in which remote work is effectively carried out in the Collective Agreement for Department Stores; up to 55 euros per month for each month of teleworking in the XXIV Collective Agreement of the banking sector … Not to mention the tax issue (taxation of expenses) that should have already been adequately clarified. The same with the issue of Social Security contributions: “legislating” via bulletins from the RED Social Security System only creates a framework of insecurity and uncertainty. And when in doubt, companies do not take risks.
  5. Coupled with the above, as the Distance Work Act relies practically everything on collective bargaining, many companies do not want to move or allow teleworking of any kind, waiting to see what is contemplated in the applicable collective agreement. And this is a great danger because, when all the employees have returned to the office, when the collective agreement regulates the issue, these companies may no longer want or consider returning to teleworking as full presence has been recovered.

How could teleworking be encouraged?

In the first place, we cannot forget that the Spanish business fabric is mainly made up of SMEs and that there was no established culture of teleworking in the pre-Covid19 era in most companies.

Go ahead that for teleworking to really take hold in a company and be successful it is required an appropriate leadership style based on autonomy and trust and a good management system by objectives, apart from providing the staff with the appropriate means and resources.

Starting from this premise, in my opinion the labor framework is far from the reality of organizations and employees of the XXI century. Between the measures to really encourage teleworking:

  • Eliminate the 30% percentage because it is a barrier that most companies do not think they are willing to go through to avoid having to formalize the distance work agreement
  • Modify the mandatory minimum content of the distance work agreement and allow a more flexible agreement.
  • Clarify the issue of compensation for expenses and the minimum means that must be provided to people who telework.
  • Clarify the fiscal and Social Security framework.
  • Create an incentive / aid / bonus system to encourage SMEs to bet on teleworking. For example, more incentives from a greater number of employees teleworking and / or by percentage of teleworking.
  • Aid / incentives for SMEs to fulfill their obligation to prepare the digital disconnection protocol (disconnection plan), which is mandatory for all companies with or without teleworkers (art. 88 of the LOPDGDD and additionally, art. 18 of the Distance Work Law).
  • From business associations, call talks / conferences / workshops to explain to companies the advantages and benefits of betting on teleworking well implemented: increase productivity if it is linked to a system of management by objectives, attraction and retention of talent, improvement of the work environment and corporate reputation …

Estela Martín Estebaranz, lawyer & DirCom of SincroGO.

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