Remote working: A new modality of contracting in the Dominican Republic.
March 15, 2021
By: Urania Paulino | Senior Counsel
The Dominican Republic has evolved in terms of remote work regulations and the Dominican authorities have made an effort to achieve a clear framework, especially in the face of the current health crisis.
For several years, the Dominican Republic has been laying the foundations for incorporating remote working as a contracting modality different from those traditionally conceived in our legal system, which is why the authorities have devoted enormous efforts to do so. A palpable example of this is Decree No. 363-16 dated December 2, 2016, which establishes the Regulations for the Application of Law No. 5-13 on Disability, articles 35 and 38, which provide that the Ministry of Labor and the Ministry of Public Administration will promote teleworking or remote work as a strategy to promote the inclusion of people with disabilities in the labor market, through the use of Accessible Information and Communication Technologies.
As a result of the COVID-19 pandemic that engulfed the world in 2020 countries were compelled to develop and complement their regulations on this matter and the Dominican Republic is no exception. As a result, the interest of the Dominican State in regulating this form of employment has been ever more evident. This initially led the Ministry of Labor to exhort employers to promote remote work through Resolution No. 007/2020, the Judicial Power to issue Resolution No. 23-2020 that established guidelines for public servants’ remote work, thus guaranteeing the continuity of the State and citizens' access to justice, and to the Ministry of Public Administration to issue Resolution No. 005-2020, which established the minimum applicable conditions for remote work.
In addition to said state initiatives, preparations have also been made in this regard at the congressional level, where both the Chamber of Representatives and the Senate of the Republic have introduced bills to regulate this modality of employment; to date no legislative initiative has materialized.
However, as a result of the change in the way of working during 2020, where companies, on the one hand, found themselves in need to adopt remote work, and on the other hand, to adapt to legal and health circumstances inherent to the current crisis environment, it was necessary for the Ministry of Labor to draw up clearer guidelines regarding remote working. Under these circumstances Resolution No. 23-2020 on the Regulation of Remote Working as a Special Employment Modality was enacted, dated November 12, 2020 (hereinafter, “Resolution No. 23-2020”), which we will address highlighting certain relevant aspects and as well as some of the challenges that we envision regarding its implementation.
RELEVANT ASPECTS OF RESOLUTION No. 23-2020
One of the most important aspects of Resolution No. 23-2020 is that it establishes a definition of what will be understood by Remote Work. In this sense, Article 2 of the aforementioned Resolution establishes the following: “Remote work is a special type of work that is provided remotely, either partially or totally, making use of tools related to information and communication technologies". This definition will allow the parties of an employment contract to divine when they are before a remote employee and when they are before an in-person employee. Two important elements of this definition are that this special modality of work (i) will be voluntary; and, (ii) will be conditional on a written agreement between the parties.
Regarding the written agreement that must be signed between the parties, Resolution No. 23-2020 provides the essential content of said type of contract, which will include the following:
Essential Clauses of Remote Working Contracts.
Tasks to be carried out by the remote employee.
Conditions of employment.
Duration of the agreement.
Determination of place or places where the work will take place.
Salary.
Hours, including breaks.
Unit within the company to which the remote employee will be assigned to and will report.
Contact details of the supervisor.
System or mechanisms to supervise the employee, which will be paid for by the employer.
Indicate whether the employer will be able to verify the conditions of the workplace, before and during the hiring.
Indication of the tools supplied by the employer to supply the work.
Who will cover additional costs.
Possibility or not of having one or more days of in-person work.
Conditions for the reversibility of the agreement.
Regarding the responsibilities and obligations of the parties of the aforementioned type of employment contract, Resolution No. 23-2020 sets out those that correspond to both the employer and the employee which we will detail below:
RESPONSIBILITIES OF THE EMPLOYER.
Provide the necessary equipment, tools, materials and training, unless the employment contract provides otherwise.
Assume the operating, running, maintenance and repair costs of the equipment and tools you supply to the remote employee.
Inform the remote employee about the protection and handling of data, as well as the risk and penalties that the improper use of the same would entail.
Respect the remote employee’s breaks established by the Labor Code.
Establish mechanisms to compute overtime and night shift.
Inform about the hygiene and safety requirements of the job, the conditions necessary for the provision of the service, the specific risks of their work and about the necessary preventive measures that must be adopted.
Adopt measures so remote employees maintain the same level of training as in-person employees. Performance policies may not be discriminatory.
RESPONSIBILITIES OF THE REMOTE EMPLOYEE.
Safeguard all equipment and materials provided by the employer and use them exclusively for work activities.
Be responsible for the custody and use of information both provided by the employer for the execution of remote work, as well as the information generated during the course of the employment.
The places where remote working is carried out must comply with the hygiene and safety conditions established by current regulations.
Resolution No. 23-2020 also provides that certain aspects are forbidden, such as:
VIDEO SURVEILLANCE:
The use of video surveillance controls is strictly prohibited when it is carried out in the residence of the remote employee, either with the installation of cameras and/or with the use of a computer camera or any electronic device delivered as a work tool.
Regarding the rights that Resolution 23-2020 recognizes to remote employees, it should be noted that said provision refers both to the right to privacy and the comprehensive protection of personal data, as well as the right to digital disconnection. What do these rights mean? Here is a brief approach:
RIGHT TO PRIVACY:
This right is aimed at the comprehensive protection of personal data recorded in files, public registers, data banks or other technical means of data processing intended to give reports, whether public or private.
RIGHT TO DIGITAL DISCONNECTION:
This right aims to provide the remote employee full disconnection outside working hours in order to fully enjoy breaks, leave, vacations, as well as the balance of work and family life.
Finally, it is important to point out that the remote working modality will in no way modify the essential conditions of the employment relationship. As in that there is always the possibility of reversibility and it will be subject to the provisions of the Labor Code, the Law that creates the Social Security System and the other norms that regulate employment in the Dominican Republic.
CHALLENGES FOR THE IMPLEMENTATION OF RESOLUTION No. 23-2020.
After having reviewed the most relevant aspects of Resolution No. 23-2020, we will go on to identify the challenges that we envision the implementation of teleworking in the Dominican Republic brings, namely:
TECHNOLOGICAL:
Technological challenges must not only be evaluated from the perspective of the employer, where it is necessary to determine how advanced its technological platform is, but it is also necessary to determine the technological conditions such as necessary equipment, constant electricity, internet access with the appropriate speed that the remote employee has in their residence. The adjustment of both the company and the home to have the ideal technological conditions will mean an outlay of money for both parties, which versus in-person work, were not necessarily contemplated.
TAX:
From a tax point of view, it is vital to have legal provisions that allow companies to identify the tax treatment that will be given to these new expenses that the parties will incur in order to implement remote working. That is, it must be weighed and defined how employers can separate in fiscal and labor terms and report the salary of employees and the expenses involved in carrying out this type of work, such as items for internet, telephony, software, among others.
PROCEDURAL AND LEGAL:
This will play an important role in the fine point definition the obligations and duties of the parties in the remote working contract, as this can avoid excessive actions by the remote employee or the employer. Likewise, the protection of data and privacy can trigger reasons to initiate lawsuits by both parties of this type of contract if not well determined in the contract.
NO DISPARITY BETWEEN THE REMOTE EMPLOYEE AND THE IN-PERSON EMPLOYEE:
Companies must establish policies that promote equality between the remote employee and the in-person employee in order to ensure equal conditions to grow within the company, so no type of employee is favored or in disadvantage over the other.
RECONCILIATION OF WORK AND FAMILY LIFE:
Another great challenge is that it will be very important to establish tools and mechanisms so remote employees can effectively balance their work and family life and prevent remote work from degenerating into health and family disorders.
Finally, we see how the Dominican Republic has evolved in terms of remote work regulations and how the Dominican authorities have made an effort to achieve a clear framework, especially in the face of the current health crisis. However, we believe that we still have a long way to go as to the aforementioned challenges, but this requires the effort of society in general. That is, it is not a task that is solely the responsibility of the State, but rather the private sector who, from its respective position, should also promote and encourage the regulation and proper implementation of this type of work.
By: Urania Paulino | Senior Counsel
The PELLERANO NADAL team is available to clarify any questions you may have in relation to this and other measures implemented by our authorities.