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Remote work for the cross-border workforce: Ten keys to success

Nicolien Borggreve Employment Law Co-Leader, Global Legal Network, Partner, PwC Netherlands

Prior to 2020, few employees in most organisations worked remotely. But with the onset of the COVID-19 pandemic, employers and employees worldwide have been compelled to adopt virtual working. This presents opportunities as well as special challenges particularly because cross-border virtual working can trigger compliance issues that many companies are not even aware exist.

A legal lens is invaluable in assessing the overall employment costs of remote working and the potential for increased exposure to reputational risk. Different employment laws specifically apply to cross-border virtual working, from hiring to termination, depending on where companies and their employees are based. And because these can involve multiple jurisdictions, cross-border remote work tends to increase the complexity of managing compliance. The right to be consulted, the right to be informed or the right of consent of employees or employee representation bodies may be triggered when organisations are moving, either entirely or partly, to a virtual workplace. Cross-border arrangements also highlight the importance of treating all employees consistently.

Here are ten key aspects of employment law to consider as you set up or expand a remote work scheme for your cross-border workforce. Every firm’s needs are unique. Addressing all these questions now can lay a strong foundation for success—regardless of how your ‘new normal’ evolves.

1. Employment law considerations

When shifting to a virtual/remote workforce, you need to know which employment rules must be observed. Key questions:

  • Does local law permit-working from home full-time on a permanent basis?
  • Is a business required to maintain a local office or offices where it keeps employee records?
  • Is a business required to inform and consult with employees in relation to changes to the terms and conditions of their employment, including their employing entity and place of work? If yes, how is the requirement to consult triggered? For example, do you need to consult employees when you give notice on property leases?
  • Does a business need to inform or consult with unions, works councils or other employee representative bodies before setting up or altering its remote work system?
  • What happens if employees or their representatives do not consent to remote work?

2. Health and safety

You’ll need to find out about your obligations to remote workers regarding their physical health and safety. Key questions:

  • What is the company’s duty of care to virtual workers?
  • Does the company have a right or an obligation to provide active instruction on safety issues?
  • Is the company required to carry out health and safety assessments for employees who work virtually?
  • Are there situations in which the company may be required to physically access employees’ homes for health and safety purposes?

3. Compensation and benefits

Remote work can raise important questions of fairness and consistency in employee compensation. For example, you may want to consider increases in remuneration made possible by savings in office costs or travel expenses. Key questions:

  • Will regional differences in salary remain justifiable where employees are working from home on a permanent or rotating basis?
  • Are entitlements that apply in the country where the employee works from home different from those in the employee’s normal/previous place of work?

4. Furnishing the home office

With the advent of pandemic lockdowns, many employees scrambled to improvise functioning home offices. Especially for those struggling to manage home healthcare for older family members, remote schooling for children, or the isolation of living and working alone, the challenges of building a ‘work sanctuary’ at home have been acute. A comfortable and well-functioning home work environment is essential to remote workers’ well-being, even as it may become much harder for you to assess the happiness and job satisfaction of those employees when they work outside the office. Employees may want you to cover some of their remote work costs. Key questions:

  • Is the business required by local laws to provide equipment, such as desk chairs or computers and peripherals, for its remote workers’ home offices?
  • Is the business required to subsidise or contribute to other costs of office use of the home, including rent/mortgage, services such as the cost of utilities or broadband internet access, and/or insurance (homeowners, theft)?
  • How can employers assess the well-being of employees who are working from home? Should employers consider the impact on employees with caring responsibilities, or on employees living alone?

5. Redundancies (statutory dismissal rules)

If an employee’s place of work has changed from an office to a home address, it may be difficult for the company to justify terminating their employment on the basis of geographical redundancy or the closure of a workplace location. Your remote employees may have acquired new statutory rights to termination payments or indemnities in the country in which they have been working. Key question:

  • What are the redundancy rules in the case of remote working?

6. Changes to workforce structure and employing entity

The widespread adoption of remote work can have significant consequences for your workforce structure. Key questions:

  • Is it appropriate to change the employing entity for an employee who is working from home?
  • Is it beneficial to set up a central employing entity for globally mobile employees?

7. Performance and productivity of employees

Many employers are concerned about long-term challenges to fair and effective supervision and assessment for employees working virtually. Key questions:

  • How can the company fairly monitor employee performance remotely?
  • Should adjustments be made to performance assessments?
  • How can support be provided for poor performers to enable a better transition to remote working?
  • How can employers track the productivity of remote employees?
  • Are face-to-face meetings required, and if so, when?
  • Must performance records be stored in hard copy in the country?

8. Amending employment terms and conditions

If none or few of your employees have recently worked remotely, you may need to update your company’s policies and procedures, including amending terms and conditions of employment for many. Local laws may prohibit you from doing so unilaterally. Key questions:

  • Does the company need or is it legally required to create a new virtual working or home-working policy?
  • Are fair and consistent procedures in place for employees to apply to work remotely?

9. Obligations regarding displaced employees

Since the start of the COVID-19 pandemic, a number of workers have been working in a country other than their normal country of employment. Due to travel restrictions and worker preference, these arrangements have in some cases been in place for several months. This is increasing the potential risk exposure for organisations, including in corporate and employment tax, regulatory issues (e.g., if the individual is performing a regulated financial services role) and even a broader range of employment laws applying to the individual in the displaced working country, as the working pattern continues. Key questions:

  • Can the company recall the workers back to their country of employment under existing contractual provisions or place workers on periods of paid or unpaid leave (holidays) to minimise risk exposure?
  • Is it possible to discipline or terminate employees who refuse to return to their country of employment?
  • If the employee continues to work in the “host” country, what additional employment law rights would be triggered and when?

10. Cyber security and data privacy risk

Ensuring the security of your company’s computer networks and data privacy are challenging enough in the workplace and without a pandemic. Threats can drastically increase when you manage a far-flung network of employees working virtually. Key questions:

  • Are your company’s data privacy guidance and cybersecurity measures robust enough to protect virtual working?
  • What additional training does the company need to provide for employees who process personal data?
  • To what extent is your company permitted to monitor employees working from home, and is it sufficient?

For a deeper discussion of how these issues might affect your business, please call your usual Legal PwC contacts. 

Or call me: Nicolien Borggreve, Employment Law Co-Leader, Global Legal Network, Partner, Netherlands +31 88 792 5068, nicolien.borggreve@pwc.com

Or my colleague: Chris Perkins,Employment Law Co-Leader, Global Legal Network, Partner, UK +44 (0) 7595 609 623, christopher.perkins@pwc.com