Negotiating work-from-home employment contracts.

The past few months have seen many changes in how we live, work and interact.  The corporate space in particular has been hit the hardest with regards to operations, logistics, human resources and remote work capabilities.  The days ahead remain somewhat sketchy but the fact of the matter is that adjustments in how companies need to operate is a reality and whilst some businesses will go back to business as usual, others will have to adopt and adapt to a new way of doing things.   

What is important going forward for both employers and employees, is to amicably and fairly navigate this new way of working – to reach mutually agreeable and legal agreements so as to benefit both parties.   “Contracts need to be re-worked to effectively and productively accommodate what will inevitably be the ‘new norm’ when it comes to the corporate work environment,” says PJ Veldhuizen, MD of boutique law firm Gillan & Veldhuizen Inc.   

Employers playing big brother

There are several work-from-home monitoring tools and surveillance apps that track and monitor how much time a remote worker spends on a specific task or site.  This ‘big brother’ approach has raised some privacy concerns and questions as to whether this is legal or appropriate.  “The short answer is yes, if done right and with the employee’s consent,” says Veldhuizen.  As to whether it is appropriate or not is up to debate though, he adds.    

From an employer’s perspective there are several reasons for adopting this approach – the most obvious being to monitor staff productivity and to make sure workers are doing what they’re supposed to be doing.  The less apparent reasons would be for employers to protect themselves against possible lawsuits, to maintain the integrity of hardware and software from malicious cyber-activity, and to protect intellectual property, such as trade secrets or client lists.

Another factor to consider is that if the equipment belongs to the employee, then the employer cannot access information on that equipment without an agreement or court order.  However, if data is transmitted via the company network, the employer may have access to – and therefore be able to review – any and all information with the appropriate policies in place.   “The fact is most employers can legally monitor what you do while working as long as it’s for legitimate business purposes or they have your consent. If you decide to engage in personal activities during business hours, you will usually do so at your own risk,” says Veldhuizen.

Don’t get caught with your pants down

This is somewhat uncharted territory, says Veldhuizen, but when it comes to revising contracts to facilitate working from home, he emphasises the importance of employer and employee buy-in.  The balance of convenience will usually favour the employer but an agreement that is measurable and within reason needs to be drawn up to protect both parties.   

Working remotely will require some adjustments to exisiting and new contracts that clearly define the expectations and responsibilities for employees who work from home.   Amendments or additions to consider would be:

  • tailoring of standard contract clauses;
  • including a work-from-home policy if not already stipulated that defines scope of work, office hours, meetings, monitoring tools, etc; 
  • special insurance arrangements;
  • identify tax consequences;
  • measures to ensure confidentiality of information that comply with the POPIA;
  • compensation and benefits i.e. office costs – payment / contributions towards cellular phones, landlines, software, hardware; 
  • remuneration: salary structure;
  • health & safety at work assessment, including sickness reporting; 
  • consider testing the scheme on a trial basis and assess whether a “right to revert” clause should be included;
  • a force majeure clause which covers the effect of suspending the obligations of one or both parties in certain exceptional circumstances ie: covid, but which needs to be carefully worded.

“Don’t get caught with your pants down on contract negotiations (or when that zoom call goes live, for that matter) – getting specialist advice when negotiating new work-from-home contracts is the wise thing to do,” advises Veldhuizen.  The bottom line is that employers and employees need to work together to make this really work.  

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