Workers’ paradise? Portugal’s new remote work law faces severe criticism

Workers’ paradise?  Portugal’s new remote work law faces severe criticism

Lisbon Liberation: – Portugal’s new work-from-home law makes the EU country look like a workers’ paradise.

Companies cannot attempt to contact their employees outside of business hours. They should help employees pay their gas, electricity and internet bills in their homes. Bosses are prohibited from using digital software to track what remote workers are doing.

There is only one problem: the law may not work. Critics say the new rules are half-baked, short on detail, and useless. And it may even backfire by making companies reluctant to allow working from home at all.

“The law is poorly written and doesn’t meet anyone’s needs,” says Jose Pedro Anacorita, employment attorney at PLMJ, one of Portugal’s leading law firms. “It is not good for anyone. … It makes no sense.”

In many places around the world, the COVID-19 pandemic has accelerated an earlier trend toward digitization of work and more flexible working arrangements. Amid this sudden and massive shift in the employment landscape, governments are striving to accommodate work from home in their employment laws. These efforts are still largely in their infancy.

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Many Europeans have stopped going to the office regularly since March last year to help curb the spread of COVID-19.

In Europe, unlike the United States, labor protection is seen as a cherished entitlement. The layoff of an employee, for example, may entail significant severance pay.

Without promised European Commission guidance on how to legally frame the shift to intensive work from home, governments’ legislative responses have been erratic and fragmented.

During the pandemic, some countries have recommended teleworking. Others demanded it – such as Portugal. Most EU countries have specific legislation on remote work, although different approaches are taken, and some are considering this through amendments, expansions or agreements.

With the growth of working from home in recent years, the “workers’ right to separate” – allowing employees to ignore issues of working outside official working hours – was adopted before the pandemic spread to countries such as Germany, France, Italy, Spain and Belgium. It has now become the norm.

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But Portugal is taking this concept a step further, by turning responsibility on companies. The new law states that “it is the duty of the employer to refrain from contacting the employee outside working hours, except in cases of force majeure”, i.e. an unexpected or uncontrollable event.

Also, parents or caregivers with children up to eight years of age have the right to work from home if they choose to, as long as the type of work they do is compatible with remote work.

Fines for companies that break the law amount to nearly 10,000 euros ($11,200) for each violation.

The Portuguese rules are intended to address the downside of what became known as WFH.

Technology that enables work from home has also opened the door to abuse, such as long workdays where employees remain accessible outside their normal eight-hour shift. Consequences may include diminishing work and private life and feeling isolated.

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But the new law has been met with skepticism from those it aims to protect.

Andrea Sampaio, a 37-year-old who works in telecommunications in the Portuguese capital Lisbon, agrees with the purpose of the law but believes it is too general and it will be very difficult to implement.

“We have to have common sense,” she says, adding that she doesn’t mind being called outside office hours if it’s urgent. “We have to judge each case in terms of its merits.”

She believes that the authorities will mostly deal with employee complaints – “but people will fear losing their jobs if they do.”

Pushed by the pandemic but designed for future application regardless of COVID-related measures, the law could go into effect as soon as December 1.

It is largely the brainchild of the centre-left Socialist Party, which has ruled Portugal since 2015. Ahead of elections to form a new government on January 30, it is eager to polish its progressive credentials and raise a banner around workers’ rights.

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However, practical questions abound: Should employees be pulled from company email lists when their shift ends and then returned to work when they start working again? What about Europeans who work in the financial markets and need to know what’s happening in Hong Kong, for example, and have colleagues working in different time zones?

What if an unstoppable industrial machine required the attention of a stalled engineer? Who can not “call” the employee – the department supervisor? CEO of the company? What constitutes a “contact” – a phone call, a text message, or an email?

“The devil is always in the details…but also in the execution,” says John Messenger, a working conditions specialist at the International Labor Organization, a United Nations agency based in Geneva.

The Portuguese Business Confederation, the country’s largest conglomerate, was not involved in drafting the new law and is believed to be riddled with loopholes.

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Rules for remote work need to be flexible, tailored to each sector and negotiated between employers and employees, says Luis Henrique of the union’s legal department.

“We treat situations that are completely different as if they were all the same,” Henrique said. “(The law) cannot be one-size-fits-all.”

Policing and enforcing the new rules may also be a challenge in one of the European Union’s poorest economies. In Portugal, famous for red tape and slow justice, as well as poorly resourced public services, how long will it take for a complaint to liquidate the system and achieve a result?

Across Europe over the past decade, the number of labor inspections has “collapsed”, according to data analyzed by the Brussels-based European Confederation of Trade Unions, which represents 45 million members in 39 European countries.

Which country has seen the biggest drop in the number of inspections since 2010? Portugal, with 55% fewer checks as of 2018.

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Henrique of the Portuguese Business Confederation said: “Ambitious and progressive laws … are inconsistent with the fact that methods of regulating them are not yet in place.”

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