Are overtime and night hours compatible with telework?
Colombia regulated telework with Law 1221 of 2008. However, the law started to increase in relevance a year ago due to social distancing measures imposed due to the COVID-19 pandemic. This newfound popularity, along whit its current use, led to a debate before the Colombian Constitutional Court of the constitutionality of its Article 6. The Court rendered its decision on this matter on April 21, 2021.
The Article, for the most part, was declared constitutional except for an expression enshrined in the last section of the article. The text classified as unconstitutional by the Court limited the payment of overtime and night hours of teleworkers to those who performed their duties in a place where the work could be verified. This regulation imposes an extra burden on teleworkers, since telework is mostly or fully executed outside the physical space determined by the employer.
Law 1221 seeks to promote equality between teleworkers and workers. According to this principle, the Constitutional Court declared the previously mentioned expression as unconstitutional because this regulation created inequality between regular workers and teleworkers. The condition that work must be executed somewhere where it can be verified was deemed excessive, taking into consideration the existence of technological tools for time keeping that do not require the mobilization or on-site vigilance of the teleworker. The overtime could also be verified trough the correct and timely execution of duties imposed by the employer.
This decision opens the door for the adequate remuneration of overtime, night hours, and holiday hours of teleworkers without the requirement of on-site verification and in harmony with current labor regulations.
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