April 2023
Elizabeth Pai and Lilian Hsu
The work mode of “working from home” was widely adopted by enterprises during the onslaught of the pandemic in the past, while working from home has not become a thing of the past as society and industries have gradually emerged from the haze of the epidemic and has instead become a common work mode for certain enterprises. To safeguard the rights and interests of employees and promote the harmonious development of the employment relations under such circumstances, the Department of Labor of the Taipei City Government announced that the “Guideline for Ensuring Working Conditions for Working-From-Home Implemented by Business Entities in Taipei City” (hereinafter, the “Guideline”) would go into effect on March 1, 2023.[1]
The Guideline suggests that a working-from-home agreement should be negotiated and formulated in writing between the employer and the employee and should not undermine an employee’s rights and interests. In addition, the employer is required to set up a work-hour reporting mechanism, respect the right to disconnect of the employee, pay attention to the safety of working from home, and establish a complaint-handling mechanism. Furthermore, the employer may provide or subsidize essential software and hardware equipment required for remote working. In particular, the employer should pay special attention to the rules concerning the “working-from-home agreement,” “attendance management,” and the “employee’s right to disconnect” as explained below:
1. Method of reaching agreement on working from home
An employer shall negotiate with individual employees or through a labor union (or through a labor-management meeting in the absence of a labor union) to establish a special working-from-home chapter in the labor contract, work rules, or collective agreement, specifying arrangement such as the job description, working hours, work equipment, data protection, attendance management, the circumstances under which employees may request to work from home, and the requirements for terminating the working-from-home arrangement (Point 3 of the Guideline).
If a labor contract, work rules, or collective agreement does not originally stipulate the working conditions for the mode of working-from-home while the employer wishes to adjust to that mode during the term of the employment relationship, the rule concerning a job transfer under Article 10-1 of the Labor Standards Act (hereinafter, the “LSA”) shall apply since the adjustment may involve changes in the job description, work location, or compensation.
2. Attendance management rules
Irrepective of whether working-from-home is implemented or not, attendance management is the employer’s legal obligation (Article 30 of the LSA). However, since the working-from-home mode blurs the distinction between “working hours” and “rest time,” a new mechanism and software and hardware equipment are required to remotely record the attendance status of employees. This mechanism relies on mutual trust between the employer and the employee, who are both required to try and adapt to it. Therefore, it is indubitably a major challenge for an employer to thoroughly carry out attendance management rules under a working-from-home situation.
According to the announcement of the Department of Labor of Taipei City Government,[2] up to 30% of the counseled business entities violated the LSA and other labor-related laws and regulations due to their implementation of working-from-home. In particular, major violations included “failure to record working hours to the minute,” “failure to pay wages for extended working hours,” and “failure to prepare attendance records pursuant to law.” The Department of Labor of the Taipei City Government imposed a total fine of NT$3.03 million on business entities that were found to have failed to rectify according to its subsequent follow-ups.
In order to assist business entities to comply with laws and regulations, the competent labor authority proposed that employers may consider recording attendance status through computerized information or electronic communications devices, such as sending work logs by e-mail, punching time cards through a cell phone app, communications software, or computerized attendance system, and confirming the attendance status of the employees through dashcams, GPS trackers, or customer signature forms (Point 9 of the Guideline and Article 2, Subparagraph 6 of the Guideline for the Working Hours of Workers Working off the Business Premise).
3. Employee’sright to disconnect
An employer should protect the “right to disconnect” during a employee’s rest time and avoid using its authority or electronic communications tools (such as email, short messages, communications software, APP, etc.) to transmit information to interfere with the employee’s rest during vacation or non-contractual working hours (Points 11 and 12 of the Guideline). Specifically, an employer should negotiate with employeesor through a labor union or labor-management meetings to agree on the implementation of the right to disconnect with main provisions including:
(1) The reasonable manner and period for employees to exercise their right to disconnect should be specifically stipulated, and the education and training related to the right to disconnect should be provided to employees and the management .
(2) A reminder that “no immediate response (or handling) is required” should be added to a message sent to employees who are on leave or during non-contractual working hours. If there are urgent matters that need to be handled by employees immediately, employers shall extend working hours or suspend holidays in accordance with Article 32, Paragraph 4 or Article 40 of the LSA, pay the corresponding overtime pay, and provide compensatory time off in accordance with law.
(3) Employers shall not treat the employees unfavorably in terms of working conditions, job description, or promotion opportunities when they fail to respond to work messages during vacation or non-contractual working hours.
Although the Guideline is administrative guidelines[3] and are not mandatory per se, still it is important to note that its provisions are closely related to the LSA. If a business entity implements working-from-home in violation of the provisions of the LSA regarding a transfer, attendance records, overtime restrictions, etc., the competent authorities will still impose penalties pursuant to law. Therefore, it is recommended that a business entity that implements working-from-home should follow the Guideline and may refer to the 25 items of the checklist in the Self-Assessment Form for Working-from-Home Implementation by Business Entities[4] to ensure compliance.
[1] https://www-ws.gov.taipei/001/Upload/307/relfile/11869/128732/9652a39d-ff29-4282-9435-86a7a9b51b4b.pdf
[2] https://bola.gov.taipei/News_Content.aspx?n=098B457D83590D7F&sms=72544237BBE4C5F6&s=DD4143E5DFB3CB78&fbclid=IwAR1_VkjJ4HsF-tOcioEYkPpYo9QxRMTyKSddHUiqb1Jp4SdgkMRxIFac0NY
[3] https://bola.gov.taipei/cp.aspx?n=ECD43AA057E9D8B2&fbclid=IwAR1Bw2zX83tllLIwDgt9cd7ySEM9dhtoFcMeTOW9ewicEu75b5naE3rpUAQ
[4] https://www-ws.gov.taipei/001/Upload/307/relfile/11869/128732/e539316a-a274-4cce-8d1c-2d637cbeb158.pdf
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