Considerations When Implementing a Work-from-Home System
Bongsoo Jung / a Labor Attorney at KangNam Labor Law Firm
I. Introduction
As of March 23, 2020, the number of persons confirmed to have been infected by the coronavirus in Korea was approaching 9,000, with over 100 dead. COVID-19 is spreading worldwide and showing signs of prolongation. In this emergency situation, many companies are putting work-from-home procedures in place to protect workers while continuing business. However, these procedures have been introduced without preparation, lowering work efficiency and causing many negative side-effects.
To maintain efficiency while a work-from-home system is in place, the following three criteria must be met in the introduction process: (i) the jobs must be suitable for working from home; (ii) the employee(s) must have the necessary work environment to work from home; and (iii) there must be continuous management supervision of those working from home. First, a work-from-home system should be introduced only for jobs in suitable fields. Second, an IT work environment must be in place for the employee(s). Only then will it be possible to manage and supervise the work and address the security concerns related to working from home. Third, application of the Labor Standards Act to maintain and manage the working conditions of those working from home must be made clear. From this point of view, I would like to review the concept of working from home and suggest concrete methods to make a work-from-home system sustainable.
II. Jobs Suitable for Working from Home and Required Equipment
1. The concept of working from home
Working from home provides flexibility when a work space is provided in a “home” and utilizes information & communication technology and the facilities & equipment necessary for the work. Regular working from home involves most of the work being done from home, while occasional working from home involves only part of the week spent working from home and the other part at the office. This would include, for example, Mondays and Tuesdays at home working and the rest of a 5-day work week in the office.
2. Jobs suitable for working from home
Jobs that allow workers to work independently and involve the performance of individual tasks, jobs that have little or no face-to-face contact with customers, and jobs that do not need to be performed at a specific location are all suitable for a work-from-home system. Such a system is particularly easy to introduce into fields such as program and game development, web design, book publication, distance education, financial and insurance marketing, civil complaint consulting, planning and administrative processing, and computational work.
① Suitable tasks: 1) Work with little or no face-to-face contact with customers; 2) Work allowing a high degree of independence and little need for approval or reporting, or organizational management that allows a high degree of independence due to little need for cooperation between organizations; 3) Work easy to quantify in work performance evaluations; and 4) Jobs determined by managers with approval authority after considering business characteristics and working conditions of the department.
② Unsuitable tasks: 1) Jobs where there is significant security risk due to insufficient security measures in the relevant business; 2) Jobs involving safety inspections, equipment inspections, and accident handling measures, etc., where the person responsible should be there to do such jobs, or the risk will inevitably and significantly increase if the work were to be done from home; 3) Jobs where the work must always be carried out in a specific place for the purpose of receiving and processing civil complaints; 4) Jobs where other serious obstacles are expected before business (administrative) objectives can be achieved.
3. Equipment needed when working from home
A certain level of working environment and work facilities (seats, PCs, etc.) are needed at home so that the work can be performed in an identical or very similar environment to the regular office.
(1) Preparing work space
As contact with family members can disrupt work performance, employers need to ensure that those working from home have an independent space dedicated to work.
(2) Construction of an IT infrastructure
The company will need to provide the basic IT devices and networks needed to do business at home. These would include computers and accessories, printers, communication equipment, and personal web cameras for video conferencing. The company will also need to provide the necessary solutions (electronic payment, messenger, file sharing, project management, etc.) when accessing office systems or performing company work.
(3) Cost burden
It is common for the employer to bear the communication expenses related to working from home, the cost of information and communication equipment, and work-related consumable items.
(4) Security measures
Working from home requires measures to protect information security. Such measures may include (i) providing a solution to security threats that may occur when accessing an office system from home, and to support with related technologies, (ii) introduction of a computer that leaves all work and records on the cloud rather than individual computers, (iii) actions to prevent family members of the employee working from home from accessing any company data, (iv) safe disposal of document waste, and (v) preparation of measures to ensure security of the home office space and computers (such as shutting them down automatically) when the employee is not at the work-from-home location.
III. Introducing a Work-from-Home System
Introduction of a work-from-home system requires (i) a written agreement with the workers’ representative, (ii) changes in the labor contract with individual workers, and (iii) changes in the rules of employment. Even when a work-from-home system needs to be revised, the employer must follow the above 3 steps again. However, when the work-from-home system will apply only to a particular worker, only that worker’s consent is needed.
1. Written agreement with the workers’ representative
The Labor Standards Act (Article 58 (2)) provides for the provision of a written agreement with the employees’ representative when working outside the workplace, such as working from home. The time required for the performance of work is usually determined through a written agreement, but the content of the rest of the written agreement is not otherwise specified. Eventually, if the working hours for a work-from-home system are determined in a written agreement, the details of place of work and those to whom the agreement applies should be included.
2. Changes to the employment contract
(1) Since the details of workplace and working hours are legally required to be specified in the employment contract, the working contract must reflect the changed workplace and working hours under the work-from-home system (regular work from home).
(2) For occasional work from home at a certain frequency and time while the company workplace remains the main workplace, it is necessary to state in the employment contract that work at a certain frequency and time outside the workplace is possible. However, as is the case for remote work, it is common for employment contracts to stipulate that uniform working conditions such as working place, working hours, and holidays are subject to employment rules or collective agreements. In this case, even if it is not specified in the employment contract, it is recognized in the employment rules that the company fulfilled its obligation to notify workers of compulsory working conditions.
3. Changes to rules of employment
When introducing a work-from-home system, whether there is a need to change the existing rules of employment needs to be confirmed. Any changes shall be reflected in the existing rules of employment.
(1) If there is no change to the rules of employment: When comparing the working conditions of working from home with those of ordinary workers at the workplace, if there are no changes in working conditions besides workplace, individual consent of the worker who wants to work from home is all that is needed. There is no need to change the rules of employment.
(2) When the rules of employment need to be changed: If the employer requires all workers in the business or workplace to work from home.
Example rules of employment: Article 00 (Working from home)
① The company may introduce a work-from-home system for workers desiring to work part or all of their working hours at home.
② The working hours of workers to work from home are considered to be 8 hours a day. However, working hours may be determined separately according to the work performed. When the working hours are determined by written agreement with the workers’ representative, the hours in the agreement shall be considered working hours that have been worked.
③ If those working from home want to work overtime, at night or during holidays, the approval of the head of the department must be obtained in advance. In this case, 50% of the normal wage is added and paid.
④Requests to come to the company workplace due to reasons such as business meetings, work orders, work performance evaluation, education, events, etc. must be followed.
IV. Application of the Labor Standards Act
1. Attendance management
The Labor Standards Act regulations on working hours and rest also apply to workers working from home. However, working from home is a form of work in which workers' working hours and daily home life cannot easily be separated due to the nature of the workplace. It is difficult to manage and supervise such working hours as they are at home. In the end, it is left to the worker whether to fulfill the duty to provide work during the specified working hours. However, online attendance records and information and communication devices can provide some assistance with worker management.
Regulation example: Work-from-Home Service Regulations
① Workers who have been approved to work from home are expected to manage their time and attendance well, including the time they start and finish their work each day. If necessary, the authorized person can confirm this by telephone or an in-person visit.
② Workers shall not leave the at-home workplace for personal reasons during the performance of work. If they need to work outside their home or at the applicable “smart work” location, this must be approved by the relevant company authority in advance. However, if it is unreasonably difficult to obtain this relevant authority’s prior approval, the worker must immediately report to the relevant authority after changing the place of work for a late approval.
③ The worker shall immediately report any emergency while working from home to the approval authority, who shall respond with appropriate instructions.
④ Those working from home must provide an electronic report of their work plan and outcomes to the approval authority at least once a week.
2. Working hours, overtime, night work allowance
When the work-from-home system is introduced, whether or not an overtime allowance, night work allowance, or holiday work allowance occurs depends on the specified working time for the worker or the time normally required to perform the work and the range of working hours established by the labor-management agreement.
In principle, if the teleworkers (which is another term referring to those working from home for an employer) required to perform a specific task in accordance with the employer's instructions work overtime, at night or during a holiday, overtime and nighttime work allowance must be paid. However, it is desirable to prepare a similar procedure for general workers to apply for overtime, night, and holiday work in advance and be approved by the employer before working those hours. For example, a procedure might include reporting in advance plans to work over a holiday to obtain the employer's permission and then report the outcome in detail.
3. Leave and rest time for tele-workers
If the rules of employment do not provide separate rules for leave and rest for ordinary workers working from home, the employment rules on working hours, leave, and rest for ordinary workers apply. In this regard, it is desirable for the employer to set in advance the matters concerning working hours and non-working hours (for example, non-working hours due to vacation or sick leave).
4. Job training and compulsory training
It is unavoidable that workers who work remotely or from home are susceptible to some concern that they may lag behind their colleagues in development of their abilities, etc., because working from home does make it difficult to have the educational opportunities normally obtained during on-the-job training (OJT). When a separate in-house education or training system, or legally-required program is run, this should be reflected in the employment rules. In particular, as education on safety and health (Article 29 of the Industrial Safety and Health Act), preventing sexual harassment (Article 13 of the Equal Employment Act), and protecting personal information (Article 28 of the Personal Information Protection Act) is normally run for workplace workers, the employer will need to provide equal training opportunities to those working from home.
5. Safety and Health Standards
Depending on the nature of their work, if it falls under the safety and health standards in the Industrial Safety and Health Act, those working from home will need to follow those rules. Accidents arising during the work at home will be considered occupational accidents and those injured/ill are eligible to insurance benefits under the Industrial Accident Compensation Insurance Act. However, accidents caused by workers' actions unrelated to work are not recognized thus.
6. Performance evaluation
When employees are working from home (full time), it is desirable to establish a system so that workers do not worry about performance evaluation and personnel management issues because they are not working at the normal workplace. The most difficult thing for companies who have workers providing work from home is ensuring efficiency from those workers. In the course of evaluating work performance, tele-workers are often less productive and feel less managed. It is a good idea for the company to do the following: (i) measure the performance of tele-workers based on visible results; (ii) manage quality of work from teleworkers, and (iii) implement performance evaluations for teleworkers as necessary, and report summary results and explain to them their ongoing progress.
V. Conclusion
In order to increase work efficiency and promote the morale of workers working from home, it is necessary that a work environment is put in place that is suitable for independent work. In addition, it is important to separate work duties from the private lives of the workers so that they can continue to work from home. Therefore, rather than having them work from home the entire week at the beginning, it is necessary to introduce working from home on an occasional basis to ensure it is possible to do so on a regular basis later.
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