Professor Baloy: “Telecommuting Law recognizes labor rights”

Working from home has represented great challenges for employees both personally and professionally. But, at the same time, it has also generated doubts in them about what’s going to happen with the additional costs they have generated at their homes, who’s going to cover the costs of the physical problems caused by staying for excessive hours on the computer, how will overtime be counted, and so on, these are many questions that workers still have even though Panamá, recently, approved a law that normalizes this labor alternative.

The pandemic promoted the approval of Law No. 126 of February 18, 2020, which regulates the telecommuting modality. Given the propagation of COVID-19, the government issued the Executive Decree N° 133 on September 16, 2020, where the new legislation is officially regulated.

“This law represents the acknowledgment of workers’ labor rights for exercising this remote work modality that was taking place somewhat informally, but that was not regulated or recognized in the country’s labor sphere”, indicated by Jacinta Baloy Ortiz, Magister, lawyer and professor of the Universidad Interamericana de Panamá who kindly gave us an interview to clarify different aspects associated with the new legislation.

What advantages does the approval of the Telecommuting Law represent for workers?

In Panamá, Law No. 126 of February 18, 2020, was approved, which establishes and regulates telecommuting. Based on the premise that telecommuting is a type of contract that can take different conditions as a fixed-term or indefinite duration contract, it’s feasible that its advantages –which are many- can be seen depending on the activity in which it’s applied.

In that case, we can mention a few:

• The worker will be able to avoid the cost of transportation, lunch, clothing, and the wear and tear of getting up very early to be present at their workplace since they don’t have to mobilize to recurrently go to their workplace.
• The worker can adopt this working modality voluntarily, just with an addendum to their employment contract if they are a worker with an indefinite duration contract (permanent), but if they have a fixed-term contract, this type of contract will be made from the beginning of the employment relationship if the activity for which they are being hired allows it.
• Even when they don’t have to move to the workplace, the worker is covered by social security, and their labor rights are recognized by the Labor Code.
• The worker will have more time to share with their family and will be able to give a rapid response to an emergency they have at home, this translates into quality of life for the worker.

Which would the additional responsibilities of the employer, associated with the entry into force of the Telecommuting Law, be?

According to Law No. 126 of 2020, in its regulation, it’s pointed out that the employer will have additional responsibilities that they must assume such as:

• They will assume the additional cost of the Internet bandwidth that’s needed to perform the worker’s tasks (Art. 11.)
• To provide, install and give maintenance to the necessary equipment for the worker, as well as the technical support of the equipment provided for the worker to carry out their work efficiently (Art. 16.)
• The employer will provide the necessary training to the worker so they can assume the responsibility according to the required standards (Art. 15.)

All these obligations are regulated by the Executive Decree N° 133 of September of 2020, in its articles 8, 9, 10 and 11.

What importance does this law represent regarding labor rights for Panamanian workers?

This law represents the acknowledgment of workers’ labor rights for exercising this remote work modality that was taking place somewhat informally, but that was not regulated or recognized in the country’s labor sphere.

This law comes to define the difference between a contract for professional services and the remote mode one, since this contract has workers’ rights recognized.

Which is the legislation of this law regarding overtime and how could a control of that work be kept outside overtime? Would the same guidelines currently expressed in the Labor Code be kept?

Law No. 126 of February 2020, article 7, points out that the worker is not forced to work overtime unless the employer asks them to do so and it’s contemplated in the individual employment contract, so this acknowledgment will be ruled by the provisions of the Labor Code.

On the basis of this rule, we have that the Executive Decree N° 133 of September 16, 2020, which regulates the Telecommuting Law, in its third article, points out that overtime will be ruled by the provisions established in the Labor Code and in its fourth article, indicates that the employer has the responsibility to keep a record of the number of hours worked whether it’s by computer means or in an analogical way, as arranged by the employer but it must be approved by both parties.

In the law, it’s indicated that the employer will have to give the worker all the implements so they can perform remote work and that, also, will have to assume Internet and electricity costs. What would happen if that is not the case?

This obligation is stipulated and regulated in Law No. 126 of February 2020, article 11, and in the Executive Decree N° 133 of September 2020, article 11, both articles point out that it’s the employer’s responsibility to cover the costs related to the public services of electricity and Internet access according to what was agreed in the contract or the respective work addendum.

If this doesn’t happen even though it’s stipulated in the contract and the rules, these obstacles can’t be causes of dismissal by the employer since the employer is not facilitating the tools and costs that are required to do the assignments given to the worker efficiently.

Does the law contemplate any protection in terms of occupational health of the workers who are telecommuting?

Law No. 126 of February 2020, article 9 and the Executive Decree N° 133 of September 2020, article 6, it’s pointed out that occupational risks will be recognized to the worker including the worker’s residence, as long as they are caused by tasks exercised for the employer, in short, in working hours, meaning if a work accident takes place, social security is in charge of investigating and determining the nature of the facts, according to the existing standards on the issue.

In your opinion, what is the most relevant aspect of that legislation regarding worker protection?

In my opinion, one of the most relevant aspects of this legislation is that it has arrived to provide legal certainty regarding the acknowledgment of the labor rights for workers and to clarify the obligations of employers in this working modality, as part of the labor relations that are being developed at present and in the future. At the same time, this regulation complies with the International Labor Organization, which is the regent on this subject of enforcing workers’ and employers’ rights as a respectful way between both parties and which results in an increase in efficiency and quality of life for the actors in this relationship.

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