Telecommuting and Work: Primer on the Telecommuting Act (Republic Act No. 11165)

The enhanced community quarantine or lockdown imposed by the government to mitigate the contagion of the Coronavirus Disease 2019 (Covid-19) brings to fore a number of laws which, on hindsight, could have been passed in anticipation of this kind of scenario. One is the 2019 law on public health emergencies. Another is the 2018 law on telecommuting, including alternative work-from-home arrangements.

 Telecommuting, as defined under Republic Act No. 11165 (also known as the “Telecommuting Act,” 20 December 2018), refers to a “work arrangement that allows an employee in the private sector to work from an alternative workplace with the use of telecommunication and/or computer technologies.” An alternative workplace refers to a location other than the regular workplace.

An employer in the private sector may offer a Telecommuting Program to its employees on a voluntary basis and upon such terms mutually agreed on. The conditions in the Telecommuting Program must bot be less than the minimum labor standards provided by law, including compensable work hours, minimum number of hours, overtime, rest days, entitlement to leave benefits, social welfare benefits, and security of tenure. 

Telecommunity is voluntary in nature. There must be a telecommuting agreement, which is the mutual consent of the employer and the employee in the implementation of a telecommuting work arrangement based on the telecommunity program of the company. The employer or employee may terminate or change the telecommuting work arrangement in accordance with the telecommuting policy or agreement.

Telecommuting employees, or those who are on a telecommuting work arrangement, are entitled to fair treatment. The employer shall ensure that telecommuting employees are given the same treatment as that of comparable employees working at the employer’s premises, including the right to:

  • Receive a rate of pay, including overtime and night shift differential, and other similar monetary benefits not lower than those provided in applicable laws.
  • Rest days, regular holidays, and special nonworking days.
  • The same or equivalent workload and performance standards as those of comparable workers at the employer’s premises, provide that the parties may mutually agree to different performance standards that may be more appropriate given that the location of the employee is not at the premises of the employer. 
  • Without additional cost, have the same access to training and career development opportunities as those of comparable workers at the employer’s premises, and be subject to the same appraisal policies covering these workers, including the qualification provided on the preceding item.
  • Without additional cost, receive appropriate training on the technical equipment at their disposal, and the characteristics and conditions of telecommuting.
  • Have the same collective rights as the workers at the employer’s premises, including access to safety and health services when necessary as required by Republic Act No. 11058 and Department Order No. 198, s. 2018, and shall not be barred from communicating with worker’s representatives. 

The employer shall also ensure that measures are taken to prevent the telecommuting employee from being isolated from the rest of the working community in the company by giving the telecommuting employee the opportunity to meet with colleagues on a regular basis and allowing access to the regular workplace and company information. 

Because telecommuting requires the use of telecommunication and/or computer technologies, data protection is crucial. The employer and the employee must agree on minimum standards that will protect personal information and shall utilize available technologies that promote security and privacy. The employer shall be responsible for strictly taking the appropriate measures to ensure the protection of data used and processed by the telecommuting employee for professional purposes. On the other hand, the employee shall commit to the company’s data privacy policy and ensure that confidential and proprietary information are protected at all times and utilized only in accordance with the requirements of the employer. The Data Privacy Act of 2012 has suppletory effect.

[This discussion is based on R.A. 11165 and DOLE Department Order No. 202 dated 26 March 2019 (Implementing Rules and Regulations of Republic Act No. 11165 Otherwise Known as the “Telecommuting Act”)]

P&L Law

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