EPP Rechtsanwälte Avocats: "A collective agreement or charter provides the best possible framework for remote work"

Leaders League: What is teleworking?

Emeline Salmon: In French labor law, teleworking refers to any form of work organization in which work that could also have been performed on the employer's premises is carried out by an employee away from these premises on a voluntary basis, using information and communication technologies.

Michael Ott: In Germany, there is a much more restricted legal definition of « teleworking ». It refers to cases where work is carried out regularly or exclusively at the employee's private home and where the employer has fully equipped the workplace including furniture etc. However, in practice there are lots of cases of what Germans commonly call "home-office". This means that work is carried out from time to time at the employee's private home and for the rest of the time at the company. The employer doesn’t equip the whole workplace but only provides for example electronic devices.

Work at locations other than the company or the employee's home also exists, but is referred to as "mobile office". Mobile office and home office are treated differently than « teleworking » in legal terms, as many relevant legal provisions do not (yet) apply to these.

In Germany, there is a  much more restricted legal definition of remote work

Can an employee's teleworking location vary at will?

ES: Under French labor law and the non-restrictive definition of the place of teleworking, an employee could, in principle, work at the location of his choice.

In practice, this needs to be qualified, particularly in view of the fact that the place where the work is performed determines in particular the applicable labor and social security law, which is in principle the law of the country in which the employee performs his work. If an employee physically works for a period of time from a foreign country, then this change of workplace could lead to a change in the applicable labor and social security law; that of the foreign country from which the employee is working.

In addition, the employer must also ensure the safety of the employee when they are working from home. In France, for example, before implementing teleworking, the employer must ensure that the location in which the employee is to perform his teleworking duties is suitable. He must also ensure that teleworking premises and equipment provided by the employer are covered by a specific insurance. Such a check cannot be carried out if the employee regularly changes his teleworking location as he pleases.

MO: As far as the German « teleworking » and « home office » are concerned, the problem described with the law applicable arises less frequently, as he shall only work at the employer’s offices or at home, but it can also arise under certain circumstances due to relocations abroad. In the “mobile office”, the problem mentioned above is omnipresent. If the company is not dependent on its employees working in different countries for long periods of time, we therefore generally recommend restricting the employee's free choice of workplace to Germany.

As far as safety at work is concerned, German law also has strict requirements for « teleworking », which employers must monitor for compliance. However, these strict regulations do not all apply to « home offices » or « mobile offices ». Especially the « mobile office » is particularly little regulated by law. This makes it all the more important to instruct employees in home or mobile office correctly on workplace safety, which however is an obligation that applies to all workplaces.

In France, the employer  must ensure that the location where an employee carries out remote work is suitable.

What compensation is payable to an employee who teleworks all or part of his job?

ES: French labour law distinguishes between two sums that must be paid to the employee:

• In all cases, the employee must be reimbursed for any expenses incurred in teleworking (i.e. extra consumption of electricity and heating, etc.). In practice, in most cases the employer opts for a flat-rate reimbursement based on a scale, which is updated annually by URSSAF; 
• When teleworking is carried out at the request of an employer who does not make premises available to the employee for the performance of his duties, a compensation for the use of the private residence for professional purposes must also be paid to the employee. The amount is not set by law, but case law seems to consider the importance of the restrictions imposed on the employee by the professional use of his private home when setting the amount.

MO: According to German law, and as in France, all required work equipment for « teleworking » must be provided by the employer. With regards to the « home office », the employer only has to pay for office furnishings if the employee works from home at the employer's request. If the employee is free to choose his workplace within a « mobile office » contract, the employer doesn’t have to cover any cost of equipping the workplace.

Apart from this, in Germany the parties to the employment contract are free to define how and whether costs are to be covered. However, if they do not include such a provision to the contract and if the employee works from home at the employer's request, the employer is obliged to reimburse any expenses caused by the home office, such as for electricity, heating, etc.

What advice can you give to companies that allow teleworking?

ES: A collective agreement or, failing that, a charter drawn up by the employer regulating the implementing and use of teleworking should be signed to provide the best possible framework for the practice, ensure compliance with the obligation’s incumbent on both the employer and the employee, and avoid any subsequent disputes with the employee.

MO: Employers often aren’t aware of the advantages of the « mobile office ». As long as they don’t necessarily need their employee to have a fixed workplace at home, they can avoid certain expenses and obligations by opting for a mobile office clause and the employee often appreciates the flexibility, too.

Interview with EMELINE SALMON, French lawyer, and MICHAEL OTT, German Lawyer, EPP Rechtsanwälte Avocats