Due to the impact of the epidemic, working from home has become the mainstream office method generally adopted by enterprises at the current stage.
Migrant workers were initially immersed in the excitement of not having to commute and being able to accompany their families, but within a few days they discovered that working from home did not seem to be as good as they thought, such as longer working hours, no clear statement on overtime pay, and many people Salary has also been cut... But the law is lagging behind. The current laws and regulations are more regulations and constraints on traditional office methods, and there are few clear legal regulations for home office.
The various legal risks that may be brought about by working from home have also aroused people's thinking.
Problem 1: How to count attendance?
"We still use DingTalk to punch cards during the home office, but after punching the cards, it is impossible to know whether the employees are working or not. We can't let everyone work with the camera on, right?" The reporter found that in some HR's In the WeChat group, many people asked similar questions.
Liu Jianbo, an expert in labor law and a lawyer at Beijing Huiyou Law Firm, said that working from home is formally separated from the supervision of the employer because of the overlap between the workplace and the place of rest of the employees. Regarding the management of laborers' attendance and actual working hours, the current There is also a lack of clear legal norms.
Employees may clock in without getting up, or they may put on their clothes and clock in and lie down to sleep, or they may delay work until night.
At this time, how to check the attendance of employees in the unit has become a difficult problem.
Problem 2: How to count overtime?
After this period of working from home, many people in the workplace have this feeling - from being on the job for 8 hours to being online all day, and even on rest days, they cannot escape the "indiscriminate bombardment" of the work group.
So, a question about overtime was put in front of everyone.
Such labor disputes have occurred in 2020.
Ms. Cao works as the sponsor of the administrative department of a design institute. Due to the impact of the epidemic, she worked from home in February and worked in rotation in March.
Later, the two parties had a dispute over the salary during this period, including overtime pay: Ms. Cao claimed that her rest days and statutory holidays from January 28 to March 31, 2020 are still in accordance with the design institute's regulations. The requirement to collect, summarize, and check information on personnel during the epidemic should be considered overtime, and the design institute should pay overtime.
The design institute believes that during the shutdown period, Ms. Cao worked from home, and her working hours were flexible. She should not pay overtime for sporadic work such as statistics and form filling during flexible working hours.
In the end, the court did not support Ms. Cao's claim for overtime pay.
Liu Jianbo said that during the period of working from home, due to the fragmentation of employees' working hours and the weakening of the company's supervision ability, it is very easy to have disputes between the two parties over issues such as overtime and overtime pay, and it is difficult to reasonably resolve them only by relying on existing laws.
In the past, it was more difficult for workers to provide evidence for disputes over overtime, and many cases were lost.
During the home office period, because both parties communicate online, employees have sufficient evidence of "after get off work hours" to arrange work, and it is easier to prove the problem of overtime and overtime in form.
However, according to the survey feedback, some employees, enterprises and judicial judges believe that during the home office period, workers do not fully engage in their own work as they do in the company, that is, they are inevitably engaged in housework or other private affairs during working hours. The conflict is obvious and needs to be clearly stipulated from the legal source.
Problem 3: Is the pay cut reasonable?
"Working from home during the epidemic, the company deducted the basic salary and only paid 60% of it. Is it legal?" "Working from home wages has been halved." It is paid at 1.5 times the minimum wage." ... Many workplace people pour out their grievances and complaints online.
"Under the large-scale stay-at-home situation caused by the epidemic, the business volume of employers has shrunk significantly, and it is difficult to arrange for employees to work at full capacity. According to current policies, employers are usually required not to unilaterally reduce wages during home office. For workers, It usually feels like you are on standby 24 hours a day during the home office period. Although the workload may not be large, the psychological and physical pressure increases, coupled with the pressure of living costs, it is also extremely resistant to the employer's negotiation and adjustment of wages and benefits, and it is difficult to achieve negotiation. Unanimously reduce wages." Liu Jianbo said.
Problem 4: How to protect privacy?
Recently, an online vocational education company required home employees to install computer monitoring software overnight, and to capture faces every 5 minutes on weekdays, with a minimum of 89 screenshots per day, otherwise they would be considered absenteeism.
As soon as the incident came out, there was an uproar on the Internet.
Bosses are always worried that employees are "fishing" at home, and this anxiety about losing control makes them have to strengthen supervision in various ways.
As a result, practices such as "turn on the camera all day" and "Dingding software continue to locate and punch" have emerged.
"I was so scared that I didn't even dare to go to the toilet." "My home is my private space, why should I be monitored?"
Liu Jianbo said that according to the provisions of the "Personal Information Protection Law", face data and attendance location (involving whereabouts) are also sensitive personal information. Whether the employer's supervision is in line with the reasonable and necessary principles of human resources management, there are still some dispute.
In addition, there are contradictions between corporate data protection and working from home.
A large amount of data belongs to the company's trade secrets. When working from home, the above data is out of the company's supervision, and there is a greater risk of loss and leakage.
Problem 5: How to identify work-related injuries?
People have good and bad luck, and working from home also has unexpected risks.
This involves another important issue - the identification of work-related injuries.
Working hours, workplaces, and reasons for work are the three major elements of work-related injuries.
Today, working from home has blurred the definition of these three elements.
In the past two years, there have been many cases in this regard.
For example, after the outbreak of the new crown epidemic in 2020, Dou has been communicating with customers online about delivery and payment issues at home.
At 5:05 pm on March 13, 2021, Dou introduced the company's situation to the customer online. At 5:22, he died of a sudden illness.
Initially, the Human Resources and Social Security Department made a decision not to recognize the work-related injury.
After the family sued the court, the court held that Dou was working from home according to the company's requirements, and Dou was still performing his work duties when he fell ill, so the place where he was "home" should be regarded as a workplace, in line with the "Regulations on Work Injury Insurance". Article 15, Paragraph 1 of the "Working hours and positions, sudden illness death or death within 48 hours after rescue failure, should be identified as work-related injuries.
Liu Jianbo believes that under the home office mode, whether an employee's injury or sudden illness is a work-related injury is currently not clearly stipulated by relevant laws and regulations.
Although the workplace of working from home has changed, "home" can be regarded as a place of work, and there is little controversy.
What is prone to controversy is the determination of working hours.
During the home office period, the working place and the living place are highly overlapping, resulting in fragmented and flexible working hours. It is possible that employees are dealing with personal affairs at 10 in the morning, or they may be dealing with work emails at 8 o’clock in the evening. Five conventions identify working hours.
Moreover, because of the privacy and concealment of the family, in the event of an injury or sudden illness of a worker, it is impossible to provide irrefutable evidence such as monitoring or not during working hours, and it may not be possible to provide corresponding witness testimony, resulting in considerable controversy over the identification of work-related injuries.
There are so many little problems...
In addition to the issues discussed above, working from home also involves some small but more realistic legal issues, such as whether meal subsidies and transportation subsidies still need to be issued during home working?
Employees need to use their own venues, computers and other equipment, should the unit pay for them?
Can an employee refuse to work from home on the grounds that the employer has not provided working conditions?
How to bear legal responsibilities such as failure to renew labor contracts in time during home office, failure to seal and issue various certification procedures in time, etc.
During the epidemic, many localities have issued corresponding policies and judicial guidance, advocating that workers and enterprises resolve issues between the two parties through negotiation.
However, given that the impact of the epidemic is so extensive and lasted for such a long time, and the negotiation is very likely to fail to reach a consensus, it is difficult to solve the above-mentioned problems through negotiation alone, and it is urgent for the government and judicial organs to further clarify and regulate.
Reporter Dai Lili