Alternative working arrangements in Argentina

Mercedes Balado Bevilacqua
MBB Abogados, Buenos Aires
mercedes.balado@baladolaw.com.ar

Analía V Durán
MBB Abogados, Buenos Aires
analia.duran@baladolaw.com.ar

Introduction

Remote working has arrived as a result of the deep post-pandemic change in employees´ expectations, focused on achieving a better work–life balance, consequently alternative working arrangements had and still have a central role in the labour sector.  The global labour market faced a huge – and forced ­– adaptation to virtual work, however, it also triggered hesitation regarding employees’ privacy and the ethical use of technology. The dark side of virtual work may be linked with unlawful surveillance of employees, violating the right to privacy, a deficiency in protecting employees’ data and the impact of stress on mental health.

The new ways of communicating and the possibilities offered by virtual meeting platforms (such as Zoom, Google Meet, Skype, Webex) and the possibility of working from home or from different places throughout a given country or cross-border are perfect tools to facilitate remote or hybrid working and have proved to be efficient.

In Argentina, and Latin America, a new trend that has come to stay is hybrid-style working, which implies a combination of in-person work and remote work. In order to implement this hybrid-style working format, human resources departments are currently using encouragement measures to entice employees back into the office, such as reducing the in-office working day by one hour, offering free meals and Fridays off, and so on.

Remote work legislation is also applicable to hybrid working when employees work from home as part of a new work agreement between the employer and the employees involved.

Thus, if employees work from home certain days in the week, remote work legislation will apply during those days. We consider that temporary remote agreements based on the emergency caused by the Covid-19 pandemic are no longer applicable (this is the exception to avoid the application of the remote work regulations) and, therefore, employers must adhere to the relevant legislation when offering employees a hybrid working format.

However, the regime will not be applicable if:[1] the labour relationship is carried out in the premises, dependencies or branches of clients to whom the employer provides services regularly; tasks are carried out sporadically in the employee's home, either at their request or due to exceptional circumstances; or employees are not physically attending the workplace because employers have decided that should be the case, in order to comply with hygiene and safety regulations and to minimise the spread of the pandemic (due to the time lapsed and the current flexibility, this is no longer an excuse to avoid the application of the mandatory remote work regulation).

Remote working, mental health and the right to disconnection

If we focused on the disadvantages of remote working, we could mention employees’ disconnection with the company’s values and their isolation from teamwork that may lead to dissatisfaction at work, depression, stress or burnt out.

Also, remote work can have a long-term impact on the mental health of employees. According to the International Labour Organization (ILO),[2] telework is linked to isolation as an adverse health effect together with irritability, worry and loneliness. It is advisable that remote connectivity is reduced to avoid depression. The psychosocial impact can be worse if employees do not have access to a private, quiet, dedicated and ergonometric workstation.

In Argentina, to tackle the long hours of remote work, employees are entitled to the right to disconnect[3] at the end of their working hours and during leave periods. This right implies that employers are not allowed to request employees to perform tasks or to send communication during their time off. Sending communications to employees during their time off may be acceptable provided the main activity of the company is in a different time zone or when it is essential for an objective reason.

In all cases, the employee has no obligation to respond until the beginning of the following day, except in cases of danger, accident or imminent force majeure, or due to a threat to the national economy or the company.

Likewise, ignoring the right to disconnect cannot be incentivised. In this sense, salary increases related to supplementary hours will not be considered an incentive. Any act, conduct, decision, retaliation or obstruction made by an employer that violates this right will be considered discriminatory, thus, affected employees may consider themselves constructively dismissed and claim severance compensation plus damages.

The Argentine regime has taken a holistic approach to the new working reality that we are experiencing. Together with the right to disconnect, remote workers also enjoy other benefits that allow them to take care of their personal life during work time. Caregiving tasks for children/older adults[4]: employees living with or taking care of children under 13 years old, disabled people, or elderly adults with special needs, duly evidenced, have the right to perform their tasks during the hours compatible with their care tasks and/or to interrupt their working day as necessary (already explained). Employees that want to use this right have to provide notice to their employer so that the work may be organised around their schedule and in order to resume the working day when their caregiving tasks are finished.

This same right needs to be granted to employees who attend the office if the need arises, in order to provide a balance and avoid discriminatory situations.

Employers’ challenges related to remote working and data privacy

Remote work brought with it an inherent increase in the use of technology and therefore, the involvement of artificial intelligence (AI). Employers must face challenges in implementation of AI at work in order to obtain full benefits of hybrid work without jeopardising employee´s rights to privacy and ethical work by focusing on the following matters:

• employers have to implement AI in hybrid work taking into account that privacy is an international fundamental right recognised in multiple international treaties and in the national constitutions of almost every country. It involves the protection of human dignity and it constitutes the basis of any democratic society. Within it is subsumed the rights to freedom of expression, freedom of association and freedom of choice;
• employers must be aware of how much employees’ data they will process and if the company’s software processes employees’ data according to applicable laws. AI has the characteristics to collect data at high speed, on a large scale and in an automated way, and store data in ever-larger data centres, provoking an improper international data transfer, so its arrival has raised concerns about the use of people's data without their consent; and
• AI can be used to identify, track and monitor individuals. One of the most common methods is through a voice and facial recognition program. AI’s ability to predict has also been improving exponentially in the past few years, to the point that it can deduct people’s emotional state and/or thoughts through such recognition programs.

Argentine legislation partially addresses this point through the following actions:

• monitory systems: employer’s monitoring systems designed to protect an employer’s goods and data, require union participation in order to protect the employee’s right to privacy. This participation will be guaranteed through joint audits that include professionals selected by the union and the company. However, currently unions have not addressed this matter so far so employers‘ systems are not being monitored;
• data analysis:  employers must guarantee the confidentiality of employee’s data processing. Employers cannot use surveillance software that violates employee privacy; and
• software: employers must take corresponding measures, especially regarding the software used, to protect any data used and processed by employees who are subject to the home office framework.

Conclusion

The new working style, driven by the pandemic, has required the establishment of new technological tools to facilitate work through software, robotisation and automation, as well as AI.

We can all attest to the large-scale movement towards remote working, the dynamic reallocation of resources, the acceleration of digitisation and automation to keep up with changing individual and organisational needs.

However, not everything is perfect in the world of technology and, as we well know, the human factor is essential to our lives.

For remote and hybrid work, considering the constitutional right to privacy, which is also contemplated in the mandatory labour regulations, employers must guarantee employee privacy and take care to avoid surveillance and the non-authorised processing of employee’s personal data. Otherwise, this will cause exposure for the company to eventual claims and fines.

Moreover, many experts on mental health have stated that a lack of human contact during the pandemic has led to increases in stress, depression and anxiety, and has led to numerous additional negative physiological effects. In addition, social distancing has led many people to experience profound sadness and overwhelming isolation. The human touch has real, measurable impacts on a person’s physical and mental health.

Many companies started to implement a hybrid modality, in order to be able to mix technologies, the benefits from remote working, and human contact.

Employees’ acceptance of hybrid working is high in Argentina.  However, it is still essential that employers correctly address the data privacy aspects, optimise data processes and guarantee the protection of the employee’s right to privacy and health, actions that will minimise eventual labour claims.