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 teleworking in 2020.
According to INSEE, almost 81% of managers teleworked in 2020, compared with just 45.5% over the same period in 2019. There is every chance that this trend will continue in the years to come, as employees seem to appreciate this practice, provided that it is no longer forced and generalised, of course.
This massive use of teleworking is upsetting the already porous boundaries between private and professional life, and forcing companies to review their managerial practices and adapt their work organisation.
For employers, the crucial question of how to control and monitor teleworking 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 teleworking is fairly limited, which contrasts with the usual passion for standards in France.
There are actually quite few provisions regulating this practice:
- three articles of the Labour Code in all (L. 1222-9 to L. 1222-11),
- an extended National Interprofessional Agreement of 19 July 2005,
- and a restyled version of this agreement signed on 26 November 2020, which is in the process of being extended.
Some collective agreements include specific provisions on teleworking, but these are generally fairly summary, and are mainly a display of good practice that encourages but is not binding.
The largest companies have taken the matter in hand by negotiating company agreements and committing themselves to specific conditions for the introduction of telework. For smaller companies, however, telework remains an "amicable" practice which will have to be "professionalised" in the future.
As the law currently stands, telework can be introduced by :
- a company agreement
- a charter drawn up unilaterally by the employer,
- or by simple agreement with the employee, formalised by any means.
When telework extends beyond a few isolated employees, it is recommended that the company charter or agreement be used to specify the terms and conditions: conditions for switching to teleworking, eligibility criteria for employees, reversibility of the measure, frequency, coverage of expenses, tools made available, etc.
This document will have no immediate effect on employment contracts, but will serve as a framework agreement.
An individual written document is then required to formalise the agreement between the employee and the employer. In most cases, a rider will be signed in which the employee undertakes to comply with the framework agreement.
This rider will modify the employment contract marginally, essentially affecting the place of work. For the rest, teleworking 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 organise an annual meeting with the teleworker to discuss his or her workload and working conditions.
Regulations on working hours for employees remain unchanged, with teleworkers subject to rest periods and maximum working hours, as well as the usual rules on counting overtime. Their workload must be equivalent to that of a face-to-face employee.
That said, this legal framework does leave a number of questions relating to the fact that employees work from home. The rules for calculating working time are more difficult 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.
Teleworking and employee monitoring: how should monitoring be organised from an operational point of view?
Even when teleworking, the employer continues to monitor the performance of the work and may penalise employees who fail to do so. However, while teleworking lends itself particularly well to the monitoring of employees' data, making it possible to quantify their 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
Monitoring teleworking employees is subject to the same requirements as any monitoring system put in place by the employer for face-to-face employees (e.g. time clock, surveillance camera, etc.).
The employer must therefore comply with the following two general principles:
No invasion of privacy disproportionate to the aim pursued.
Restrictions on individual 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 indicators that make it possible 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, the employer should give preference to it.
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.
Teleworking employees must be informed of the monitoring systems in place 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 pursued
- the identity of the data controller
- how long the data will be kept,
- employees' right to object on legitimate grounds and 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.
Finally, the employer will have to consult the CSE, if there is one, before implementing the control, and comply with the RGPD when processing data resulting from employee surveillance.
The rights and obligations of the teleworker
As long as the relationship of subordination is not affected by teleworking, the employee must:
- carry out the tasks requested by their employer
- respect the working hours set
- be available to respond to work-related 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 provide for 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 organise their working hours as they wish, 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 time slots.
Although it is usual for employees to be allowed a certain amount of flexibility when teleworking, the employer is entitled to be more flexible.Although it is usual for employees to be allowed a certain amount of flexibility when teleworking, the employer is entitled to take a firmer line and may impose strict compliance with normal working hours without flexibility (in particular by defining contact time slots that coincide completely with normal working hours).
There is a limit, however, for employees on fixed working days, who must retain autonomy in the organisation of their work, otherwise the validity of the fixed working hours may be called into question. For these employees, contact time slots must be kept to a strict minimum and must meet the organisational needs of the department (e.g. the need for teams to schedule meetings in common time slots).
Teleworking employees must have the right to disconnect under the same conditions 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 that this right is effective.
The best option is to set a time slot during which the employee is not required to respond to work-related requests (e.g. 9pm - 7am).
The teleworking employee will therefore be able to organise his or her work freely outside the contact time slots and the disconnection time slot.
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 establishing a reference framework 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, websites visited, connection times).
Similarly, it is not possible to require regular action by the teleworking employee to demonstrate his or her presence at the workstation (e.g. monitoring the number of clicks per minute or taking photographs at regular intervals).
In practice, for teleworking to be effective, it must be based largely on a climate of trust. The employer can therefore be satisfied with a self-reporting system in which the employee records his or her daily working hours.
For more accurate monitoring, there are electronic clocking-in systems that allow mobile employees to record their working hours online.
For successful teleworking, 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 could ask for a daily activity report to monitor the achievement of the objectives set for the employee over a given period.
Article translated from French