Teleworking: The risk of illegal work overtime at home

Working from home is a new reality for millions of employees across EU which is here to stay with the risk of unpaid overtime teleworking. Remote working has exploded in 2020. Coronavirus pandemic has caused considerable disruption to most employers. We are all experiencing a great reset in the way many companies conduct business operations. Measures have accelerated the transition to telework, with the proportion of Europeans who work remotely shooting up from 5% to 60%.

In times of the current pandemic, employers that allow non-exempt employees to work from home could potentially face liability for unpaid overtime and off-the clock claims. More than a third of workers who used to commute are now working from home. This is unlikely to return to pre-pandemic levels, according to experts. Employers should be mindful in monitoring compliance with the overtime national policy.

What is teleworking? Definition and meaning

Teleworking refers to a form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises, on a regular basis, as defined in the European framework agreement on telework. The characteristic feature of telework is the use of computers and telecommunications to change the usual location of work.

Can I Get Overtime Pay When I Work From Home?

Overtime pay must be paid in an amount that is 1.5 times the regular rate of pay. This is the European average and employers must pay the overtime rate for any hours worked over 40 in a workweek. Employees who work from home are entitled to overtime pay.

Can my employer deny Overtime because I work from home?

The employee must usually ask the employer for permission to “work overtime.” An employer may not deny an employee the ability to “work overtime” because the employee works from home. In addition, work performed from home must be compensated at the same rate as work performed at the office.

If the time spent commuting, brings an employee “over ” 40 hours in a workweek, the employee must be paid overtime.

ICT-based work

ICT-based mobile work can be defined as the use of information and communications technologies (ICT), such as smartphones, tablets, laptops and/or desktop computers, for work that is performed outside the employer’s premises. For most employees, mobile work could be considered a variation of telework, where workers carry out their job from a fixed location outside the employer’s premises. The difference is that ICT-based mobile workers work in a range of locations and specifically use ICT to connect to shared company computer systems. Different levels of telework/ICT mobile work intensity and range of places at which individuals work might potentially have different consequences for working conditions.

EU context – EU law for teleworking

Policymakers in many EU countries are debating the rapid change in the way we work and the knock-on implications on other aspects of our daily lives, like work organisation, work–life balance, health and well-being.

EUR-Lex: Teleworking

The European framework agreement on telework, signed by the EU-level social partners in 2002, defines telework and sets up a general framework at European level for the working conditions of teleworkers. It aims at reconciling the needs for flexibility and security shared by employers and workers. Since then, technological developments have contributed to expanding this work arrangement and paving the way for a higher level of mobility of workers to work remotely.

Since early 2020, as a result of the Coronavirus disease (COVID-19), which has rapidly spread far and wide across the globe, many employers and employees have defaulted to teleworking, which may potentially alter the way we work into the future. This shift provides opportunities for businesses and helps workers to keep their employment, but also presents challenges around health and work–life balance linked to the blurring of boundaries, long working hours and constant availability. In response to the pandemic, national administrations and EU institutions have also activated business continuity plans and requested the majority of their staff to telework for the foreseeable future, which includes Eurofound itself. Being in a position to telework has allowed many organisations and businesses to retain jobs and many workers to improve their work–life balance in situations of school closures.

Parliament wants to ensure the right to disconnect from work

Parliament wants to protect employees’ fundamental right to disconnect from work and not to be reachable outside working hours. Digital tools have increased efficiency and flexibility for employers and employees, but also created a constantly on-call culture, with employees being easily reachable anytime and anywhere, including outside working hours. Technology has made teleworking possible, while the Covid-19 pandemic and the lockdowns have made it widespread.

37% of workers in the EU started working from home during a lockdown

Teleworking blurs the distinction between private and professional

Although teleworking has saved jobs and enabled many businesses to survive the corona crisis, it has also blurred the distinction between work and private lifel. Many people are having to work outside their regular working hours, worsening their work-life balance.

27% of people who work from home worked outside working hours

People who regularly telework are more than twice as likely to work more than the maximum working hours set down in the EU’s working time directive than those who don’t.

Maximum working and minimum rest times:

• Maximum 48 working hours per week
• Minimum 11 consecutive hours of daily rest
• At least four weeks paid annual leave per year

Constant connectivity can lead to health issues

Home-based workers face greater safety & health risks

Rest is essential for people’s wellbeing and constant connectivity to work has consequences on health. Sitting too long in front of the screen and working too much reduces concentration, causes cognitive and emotional overload and can lead to headaches, eye strain, fatigue, sleep deprivation, anxiety or burnout. In addition, a static posture and repetitive movements can cause muscle strain and musculoskeletal disorders, especially in working environments that don’t meet ergonomic standards.

Over 300 million people globally suffer from depression and work-related mental disorders.

Parliament calls for new EU law

EU law does not define the right to disconnect. Parliament wants to change that. On 21 January 2021 it called on the Commission to come up with a law allowing employees to disconnect from work during non-work hours without consequences and setting minimum standards for remote work.

Parliament noted that interruptions to non-working time and the extension of working hours can increase the risk of unremunerated overtime, can have a negative impact on health, work-life balance and rest from work; and called for the following measures:

• Employers should not require workers to be available outside their working time and co-workers should refrain from contacting colleagues for work purposes
• EU countries should ensure that workers who invoke their right to disconnect are protected from victimisation and other repercussions and that there are mechanisms in place to deal with complaints or breaches of the right to disconnect
• Remote professional learning and training activities must be counted as work activity and must not take place during overtime or days off without adequate compensation

The Eurofound e-survey

Eurofound’s unique e-survey, Living, working and COVID-19, provides a snapshot of the impact of the changes that occurred during the pandemic on people’s lives, with the aim of helping policymakers shape the response to this crisis. Two rounds of the survey have been completed to date, allowing for comparison between the first round in April, when most Member States were in lockdown, and the second round in July, when society and economies were slowly reopening. A range of questions focus on people’s work situation, their use of teleworking during COVID-19 and the impact on work–life balance.

e-survey results

• Teleworking has taken off in all EU countries with over a third of those in employment starting to work remotely at the outset of the pandemic, many with limited or no previous experience of working in this way. In July, nearly half of respondents teleworked at least some of the time and a third worked exclusively from home.
• Over three-quarters of EU employees in July want to continue working from home at least occasionally, even without COVID-19 restrictions. Most EU workers report a positive experience teleworking during the pandemic but very few wish to telework all the time, with the preferred option being a mix of teleworking and presence at the workplace.
• The rise in telework during the pandemic has highlighted the blurring of lines between work and private life. It will be critical for governments and social partners to introduce ‘right to disconnect’ initiatives in order to prevent large segments of workers becoming at risk of physical and emotional exhaustion.

• If teleworking is to continue across the EU, social partners must seek to include provisions for workers on the voluntary nature of telework or the suitability of specific tasks to teleworking in any legal frameworks or agreements. Clarification about how employers can contribute to expenses linked to working from home, as well as guarantees of equal pay and access to training for those working remotely will also be critical.
• Women also continue to face a disproportionate impact and remain less optimistic about their future than men – this gap widening further between April and July. The pandemic has also affected the work–life balance of women more than men, particularly with women impacted more in terms of reduced working hours and young women more likely to lose their job than men. In particular, the burden of care responsibilities increased during the pandemic for women.

eudebates teleworking and overtime