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Remote Law

Better Call Eva

In terms of teleworking, it's a bit of a sausage fair: everyone does what they want, how they want, when they want

And I'm sure you've already wondered if your employer had the right to deny you the TT, am I wrong? 😉

Let's take a closer look at what the Law says, because well, it still framed the practice, even if some sometimes seem to forget it...

📕 Article L1222-9 of the Labor Code defines TT as "any form of work organization in which work that could also have been performed on the employer's premises is carried out by an employee outside these premises on a voluntary basis".

It provides that it is set up by collective agreement or by charter drawn up by the employer after consultation with the CSE.

Otherwise, the employee and the employer can formalize their agreement freely, by any oral or written means (a simple exchange of emails is sufficient).

An amendment to the employment contract is no longer necessary since 2017.

💡 From this article necessarily follows some interesting information:

➡️ The mention "voluntarily"

The wording is crystal clear 🐳: the work is done by an employee outside the premises "voluntarily".

Concretely, this means that:

❌ The employer can NOT impose telework on you.

The employee's refusal to telecommute is not a reason for the employer to terminate the contract, except in the event of force majeure (such as a pandemic, for example, something to remind us of sweet memories 😌).

✅ Conversely, the employer who refuses to grant telework to an employee occupying a position allowing them to benefit from it (under the conditions provided for by the agreement or the charter, if there is) must motivate their response.

On the other hand, in the absence of an agreement or charter, the employer does not have the obligation to justify his refusal, even if the activity allows it.

⁉️ What about freelancers then?

Well remember, in labor law, the employment relationship is characterized by the existence of a relationship of subordination between the employer and the employee.

As a freelancer, you are absolutely not subject to it since your relationship is simply commercial.

Your client cannot therefore require you to go to his premises to work. You are fully entitled to refuse its conditions of performance of the service.

👉🏼 On the other hand, at the same time, he is perfectly entitled to refuse to contract with you. And this is where it gets complicated.

No other solution: if he is not able to impose anything on you, you cannot do it either! 😵‍💫

It's up to you to see here what is most important for you in this case: interest of the project, reputation of the client, teleworking methods,... and to choose or not to work with a client for whom the fullremote or the partial remote is not yet well democratized 🙃

And you, do you ever refuse missions without a TT?

Article L1222-9 also specifies that "The teleworker has the same rights as the employee who performs his work on the company's premises"

Since the teleworker is considered as any employee, the employer has the same obligations concerning him, namely:

➡️ To offer the same social benefits, such as restaurant tickets.

The website of the National Restaurant Voucher Commission (Cntr) even clarified: “if company workers benefit from restaurant vouchers, the same can apply to teleworkers at home”

➡️ To give him the means to carry out his function (equipment, tools, training, etc.) and to inform him of any restrictions on the use of certain equipment

➡️ Ensure health and safety

However, the law is clear, particularly with regard to accidents at work: they are not limited to company premises. It will be necessary to check whether the accident did indeed occur during the working hours, for example.

➡️ To respect your right to disconnect and your privacy: working from home does not require you to answer emails from your manager at 11 p.m.

➡ To cover certain costs: the employer has an obligation to cover the employee's professional costs related to the needs of the activity.

What about electricity, internet, etc.?

URSSAF specifies that for connections and consumables, the employer has the choice between reimbursement of actual costs on the invoice, or lump sum reimbursement.

Better Call Eva


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