Teleworking: what does the law say about employee surveillance and the employment contract?
With the Covid-19 health crisis, France saw an unprecedented boom in telecommuting in 2020.
According to INSEE, nearly 81% of managers teleworked in 2020, compared with just 45.5% over the same period in 2019. It's a safe bet that this trend will continue in the years to come, as employees seem to appreciate the practice - provided it ceases to be forced and generalized, of course.
This massive use of telecommuting is upsetting the already porous boundaries between private and professional life, and forcing companies to review their managerial practices and adapt their work organization.
For employers, the crucial question of how to control and monitor telecommuting employees has been raised for several months now. Let's take a look at the best practices and tools to adopt, in particular the HR matrix, and what reflexes to adopt.
To what extent does teleworking affect the employment contract?
The legal framework for telecommuting is fairly limited, in contrast to the usual passion for normative standards in France.
In fact, there are relatively few provisions regulating this practice:
- three articles of the French Labor Code (L. 1222-9 to L. 1222-11),
- an Accord National Interprofessionnel étendu of July 19, 2005,
- and a restyled version of this agreement signed on November 26, 2020, which is in the process of being extended.
Some collective bargaining agreements include specific provisions on telecommuting, but these generally remain fairly summary, and are mainly a display of good practices that encourage but do not bind.
Larger companies have taken the subject in hand, negotiating company agreements and committing to specific conditions for the introduction of teleworking. For smaller companies, however, telecommuting remains an "amicable" practice that will need to be "professionalized" in the future.
As the law currently stands, telecommuting can be implemented by :
- a company agreement,
- a charter drawn up unilaterally by the employer,
- or by simple agreement with the employee, formalized by any means.
When telecommuting extends beyond a few isolated employees, it is advisable to use the company charter or agreement to specify the terms and conditions: conditions for switching to telecommuting, employee eligibility criteria, reversibility of the measure, frequency, coverage of expenses, tools made available...
This document has no immediate effect on employment contracts, but serves as a framework agreement.
An individual written document is then required to formalize the agreement between employee and employer. In most cases, a rider will be signed in which the employee undertakes to respect the framework agreement.
This amendment will modify the employment contract only marginally, essentially affecting the workplace. For the rest, telecommuting does not legally alter the employment relationship. The relationship of subordination between employer and employee remains unchanged, as does the employer's power of direction, which continues to apply.
The only additional obligation is that the employer must organize an annual meeting with the teleworker to discuss workload and working conditions.
Regulations governing employees' working hours remain unchanged, and teleworkers are subject to the same rest periods and maximum working hours, as well as the usual rules for counting overtime. Their workload must be equivalent to that of a face-to-face employee.
Having said that, this legal framework leaves a number of questions unanswered, linked to the fact that employees work from home. The rules governing the calculation of working hours are trickier to implement outside the company's premises, and the employer needs to find suitable control methods. Similarly, it will be more difficult to assess the workload and verify compulsory rest periods.
Telecommuting and employee surveillance: how can monitoring be organized?
Even when telecommuting, the employer continues to monitor the performance of work and can penalize employee breaches. However, while telecommuting lends itself particularly well to the monitoring of employee data, making it possible to quantify his or her activity (analysis of connection times, webcams, employee presence on various shared applications, etc.), the employer's rights are not unlimited.
The employer's rights and obligations
Controlling telecommuting employees is subject to the same requirements as any control system put in place by the employer for face-to-face employees (e.g. time clock, surveillance camera, etc.).
The employer must therefore respect the following two general principles:
No invasion of privacy disproportionate to the intended purpose.
Restrictions on personal freedoms linked to the installation of a monitoring system must be proportionate to the objective pursued.
The number, location, orientation, periods of operation and nature of the tasks carried out by the persons monitored are all factors which help to assess the proportionality of the monitoring system put in place.
Constant or continuous surveillance of a teleworking employee is considered excessive. Where a less intrusive alternative exists, it should be preferred by the employer.
Similarly, monitoring must be limited to the employee's workstation, and may not extend to break or rest areas.
Compliance with an obligation of loyalty and good faith towards employees.
Telecommuting employees must be informed of any monitoring systems before they are put in place.
The information provided to employees must be precise and complete, and must cover in particular :
- the existence of the system
- the purposes of the system
- the identity of the data controller
- how long the data will be kept,
- employees' right to object on legitimate grounds, as well as their right of access and rectification,
- the possibility of lodging a complaint with the CNIL.
Failing this, the employer could be held liable (with payment of damages) and the evidence thus obtained would be unenforceable against the employee. The Cnil may also carry out an inspection, which could result in financial penalties.
Lastly, the employer will have to consult the CSE, if it exists, before implementing the control and comply with the RGPD in the context of processing data resulting from employee monitoring.
The rights and obligations of the teleworker
Provided that the relationship of subordination is not affected by teleworking, the employee must:
- perform the tasks requested by their employer,
- respect the working hours set,
- be available to respond to professional requests from home.
Working hours are the same as for a day in the office. Teleworkers have no automatic right to flexible working hours simply because they are working from home.
Where there is a company agreement or charter on teleworking, these documents must stipulate contact time slots during which employees must remain contactable (even in the absence of such framework agreements, it is still advisable to define such time slots).
Outside these periods, employees are free to organize their working hours as they see fit, while respecting their rest periods and normal working hours. They may therefore decide :
- start the day earlier,
- finish later
- or split it up, as long as they remain available during the reference working hours.
Although it is customary for employees to be allowed a certain degree of flexibility when teleworking, the employer is entitled to be more flexible.While it is usual for employees to be allowed a certain degree of flexibility when teleworking, the employer is entitled to take a firmer line and impose strict adherence to normal working hours, without any flexibility (in particular by defining contact time slots that coincide totally with normal working hours).
There is, however, a limit to the extent to which employees on a fixed-rate working week can be allowed to organize their work autonomously, failing which the validity of the fixed-rate arrangement may be called into question. For these employees, contact time slots must be kept to a strict minimum, and must meet the organizational needs of the department (e.g. the need for teams to schedule meetings in common time slots).
Telecommuting employees must enjoy the same right to disconnect as their face-to-face colleagues. Every employee has the right not to be connected to a professional digital tool outside working hours.
Whether employees work on the company's premises or from home, it is difficult to guarantee the effectiveness of this right.
The best option is to set a time slot during which the employee is not required to respond to professional requests (e.g. 9pm - 7am).
In this way, the telecommuting employee is free to organize his or her work schedule outside the contact and disconnection times.
Virtuous means of monitoring teleworkers to prevent abuse
There is no limit to employers' creativity when it comes to monitoring employees, and the courts have had to expressly prohibit certain practices, thereby setting a frame of reference and limiting abuses.
For example, it has been ruled that permanent screen sharing or continuous audio/video monitoring of teleworking employees is prohibited.
The use of keyloggers, intelligent software that records every action performed on a computer workstation, should also be excluded. The same applies to computer tracking, which keeps track of all data (e.g. documents consulted, sites visited, connection times).
Similarly, it is not possible to require regular action on the part of the teleworking employee to demonstrate his or her presence at the workstation (e.g. monitoring the number of clicks per minute, or taking photos at regular intervals).
In practice, for teleworking to be effective, it must be based largely on a climate of trust. Employers can therefore be satisfied with a self-reporting system in which employees record their daily working hours.
For more precise monitoring, there are electronic clocking-in systems that allow mobile employees to record their working hours online.
For successful telecommuting, it is advisable to adapt management methods.
For example, it is possible to opt for management by objectives, rather than strict monitoring of attendance time. In this case, the employer can request a daily activity report to monitor the achievement of objectives set for the employee over a given period.
Article translated from French