The employment relationships model designed after the industrial revolution was very successful for several years, building huge corporations that benefit to the growth of the employment rate and develop a well-educated and well-paid society. That didn’t mean that wealth and resources were distributed along the society. It was a model built by the big companies that set a notorious difference between the employer and employee in many ways. Another attribute of the employment relationship that began in the last century was that companies (no matter their business segment) enforced an industrial model of working, in which their employees must go to an office or any workplace to provide their services because working tools will be installed onsite, and the directions will be given in the same way.
Since many years ago, we have been noticing that employment relationships evolved in many ways, beginning by the deploy of technologies and the coexistence of human beings and computers. That brought as a natural consequence the development of the productive processes and a redefinition of the role that workforce plays getting along with technology. Also, the appearance of that many new ways to provide services or making business by using technologies, gave birth to the entrepreneurship, freelance and startup generation, that comes along with many changes in employment relationships.
In Mexico, that was a process that developed very quickly and that’s why since many years ago the Federal Labour Law (‘FLL’) included as a special working modality the ‘remote work’, emphasising that we are not talking about the currently well-known ‘home-office/teleworking’. The remote work idea was designed in the 1970’s for some tasks that must be developed in special workshops that were not the usual workplace or the main establishment of the employer. It was very common for craftsmen or artists that needed a special (and independent) workspace. Being realistic, this regulation was not very helpful or even commonly used in the corporate world or in the traditional employment dynamic. The evolution in Mexico started with the assignment of laptops to employees (approximately since 2010), because of the need of traveling and to keep working at the same time, no matter where the employee is located. That circumstance brought a lot of changes in the working operation but was without a proper (or any) regulation, presenting a lot of loopholes of the ideal balance in rights and obligations between employer-employee should be. Another common situation of the late 2010’s was that with the appearance of the freelance culture or the companies (startups) that didn’t have an office, people started to work from home. This was in very specific situations and not in a numerous number of employees.
The situation got worse when the pandemic era arrived in our lives. At first, companies (specially the big ones) developed ways of working that may manage the situation for two or three months, but never thinking that an illness will change for good, the way that we understood employment relationships. The first obstacle that companies identified was that employees didn’t have a specific or proper space to work from home (home-office), situation that may carry an occupational hazard. Additionally, companies detected that in almost any level of seniority, employees were not identifying properly the working hours, because of the mixture of being at home (or any other place) supposedly working but having the risk of wasting time and working overtime or being on the clock almost all day.
With those issues happening for almost a year and a half, in January 2021, the congress added the ‘teleworking’ chapter to the FLL creating the concept itself. In terms of article 330-A, teleworking means providing services in any determined workplace different to the employer establishment, which may be home, a coffee shop or even an independent co-working space. Additionally, it is necessary that the services be rendered by any technology means (computers, software, apps and/or any tech device). To be a teleworker the employee must work at least 40% of his or her time in these conditions. A very uncommon requirement that FLL imposes, is that this situation must be in writing, whether in an individual agreement or collective bargaining agreement. This is an odd prerogative because in most cases, FLL establishes that factual situations will be above any writing condition.
Additional obligations that were issued with the teleworking reform, were to provide the technology required tools, assume some utility costs (electricity, internet, etc), provide an ergonomic chair, to deploy information security systems, and giving the proper training to each employee working in this modality. The most innovative prerogative is the disconnection right, which grants that the employee is not obligated to be online or involved in the work dynamic out of his/her work hours. In fact, this new provision enforces the employer not to get in touch regarding work-related matters with employee when he/she is not on the clock. The obligations are determined by article 330-E of FLL. Even though this reform was very groundbreaking and well-done, it needed an additional specific regulation (NOM-037-STPS-2023), which arrived in June 2023 (two and a half years after teleworking reform) which is a special legislation, that rules some technical standards of the teleworking modality.
That said, we can be sure that the employment relationships are getting through an evolution that requires the companies to evolve at the same speed because of the legal changes that comes with this evolution. That’s why in the last two and a half years, we have been developing new handbooks and internal policies of how the teleworking relationships should be regulated in the companies, or how the labour authorities inspections will work or what will be verifying by them, in terms of what the FLL enforces.