Employment Flash News No. 7/2018
Law no. 81/2018 regarding teleworking was published within the Official Gazette no. 296/2.04.2018.
Teleworking is defined as the work organization form whereby the employee regularly and voluntary fulfills duties specific to his/her job, occupation or profession that he/she holds, in other place than the one organized by the employer, at least one day per month, using the information and communication technology.
Mentions regarding the employment agreement
The performance of telework must be expressly provided within the individual employment agreement (for the new employees) or within addenda to the employment agreement (for employees that have concluded employment agreements prior to the moment the normative act entered into force). Therefore, the normative act provides the following special elements that shall be inserted within the employment agreements/addenda:
- The express mention that the employee performs telework;
- The period of time and/or days when the teleworker performs activity at a place of work organized by the employer;
- Place/places agreed by the parties where teleworking shall be performed;
- The program when the employer is entitled to verify the activity of the teleworker and the concrete control method;
- The method of keeping track of the teleworker’s working hours;
- The responsibilities of the parties agreed by reference to the place/places of the performance of the teleworking activity, including the responsibilities in matters of occupational health and safety according to this normative act;
- The obligation of the employer to ensure transportation of the materials the teleworker uses in his/her activity from and to the place the activity is performed, as the case may be;
- The obligation of the employer to inform the teleworker about the provisions of the legislation, the applicable collective bargaining agreement and/or the internal regulation, in data protection matters, as well as the obligation of the teleworker to observe these provisions;
- The measures the employer takes so that the teleworker is not isolated from the rest of the employees and to ensure the possibility of regular meetings with the other colleagues;
- The conditions of the employer bearing the costs of teleworking.
Moreover, at the employer’s request and with the written consent of the teleworker working full-time, the latter may perform overtime. The provisions shall be corroborated with the provisions of the Labor Code, that state the interdiction of part-time employees to perform overtime.
Specific rights and obligations of the parties
The normative act contains several provisions that establish specific rights and obligations of the parties in case of teleworking, such as:
- The right of the employer to verify the activity of the teleworker, under the conditions established through the individual employment agreement, internal regulation and/or applicable collective bargaining agreement, in accordance to the legislation;
- The obligation of the employer to ensure the teleworkers equal rights as compared to the other employees;
- The obligation of the employer to ensure the information and communication technological means and/or safe working equipment necessary for the performance of work, if parties don’t agree otherwise;
- The obligation of the teleworker to observe specific rules and restrictions set by the employer regarding the internet networks or the usage of the provided equipment;
- The obligation of the teleworker not to change the occupational health and safety conditions from the places the telework is performed.
Sanctions provided by the normative act
According to the Teleworking Law, the following deeds represent administrative offences:
- Lack of express provisions within the individual employment agreement/addendum regarding the performance of telework – fines of RON 10,000 per person;
- The conclusion of the individual employment agreement without stipulating the above mentioned clauses (with the exception of the express provision regarding the performance of teleworking – in which case the above mentioned sanction shall apply) – fines of RON 5,000;
- The performance of telework without such mentions being inserted within the employment agreement/addendum – fines of RON 5,000;
- The performance of overtime without observing the legal conditions – fines of RON 5,000;
- Non-observance of the employer’s obligation to ensure information and communication technological means and/or safe working equipment necessary for the performance of work (if the parties do not agree otherwise) – fines of RON 2,000;
- Non-observance of the employer’s obligation to install, verify and maintain the necessary working equipment (if the parties do not agree otherwise) – fines of RON 2,000.
- Non-observance of the employer’s obligation to ensure conditions so that the employee receives sufficient and adequate training in matters of occupational health and safety, especially as work information and instructions, that are specific to the place of telework performance and the usage of equipment with screens (upon employment, change of place of the telework performance, upon introduction of a new working equipment, upon the introduction of a new working procedure) – fines of RON 2,000.
The normative act enters into force within 3 days of its publication within the Official Gazette, with the exception of the provisions regarding the administrative offences, which enter into force within 30 days of its publication.