1. INTRODUCTION AND SCOPE
Remote work has rapidly spread worldwide, including in Turkiye, driven by advances in digital technology and the effects of the pandemic. While this work model offers several advantages for both employers and employees, it also raises some legal uncertainties. This article examines the legal framework for remote work applications in Turkiye, the rights and responsibilities of employers and employees, and key points in practice.
2. CONCEPT OF REMOTE WORK AND LEGAL BASIS
In Turkiye, remote work is regulated by Article 14 of the Labor Law No. 4857 and the Remote Work Regulation prepared based on this article.
The law defines remote work as an arrangement where the employee fulfills their work obligations outside the workplace, usually from home, using technological communication tools. This regulation, introduced in 2016, aims to transition work relationships to the digital realm and promote flexible work models.
3. CONDITIONS OF REMOTE WORK
It is advisable to regulate the terms of remote work through a written agreement between the employee and employer. The following points are essential in this agreement:
Nature and Definition of the Work: The scope and manner of performing remote work should be clearly defined. The time frame and duration of remote work should also be specified in the employment contract. Subject to the limitations set by the legislation, the parties may adjust working hours.
Working Hours: Although remote work allows flexibility, establishing specific working hours is crucial to protect the rights of both the employer and employee.
Work Equipment: The agreement should specify who is responsible for providing the necessary tools and equipment for the job, along with the usage responsibilities for these items. According to the relevant regulation, the provision of materials and work tools required for production, unless otherwise agreed upon in the employment contract, falls under the employer’s responsibility. The usage principles, maintenance, and repair conditions for these items should be communicated clearly to the remote employee.
Occupational Health and Safety: The employer is obligated to ensure that remote employees comply with occupational health and safety measures.
4. EMPLOYER’S OBLIGATIONS
In implementing remote work, the employer has several essential obligations:
Occupational Health and Safety Measures: The employer must ensure that employees work in a safe environment, even when working from home. Furthermore, employees are required to participate in occupational health and safety training and comply with instructions in this area.
Provision of Equipment: The employer is responsible for providing technical necessities such as computers, software, and internet connection for remote work unless a different arrangement is specified in the contract.
Protection of Personal Data: Under the Turkish Personal Data Protection Law (KVKK), the employer is required to take technical and administrative measures to protect the personal data of employees working remotely. Consent must be obtained for processing, storing, and sharing employees’ personal data with third parties.
5. OBLIGATIONS OF REMOTE WORKERS
Remote employees have the same rights and obligations as other employees working on-site. However, some additional obligations are in place.
Adherence to Work Discipline: The flexibility provided by remote work does not relieve employees of their responsibility to adhere to work discipline. Employees must comply with designated working hours and perform their duties in accordance with the employer’s instructions.
Compliance with Occupational Health and Safety: Employees must receive occupational health and safety training provided by the employer and take necessary measures to ensure safety in their working environment.
Work Performance and Efficiency: Due to the nature of remote work, employees are expected to maintain their work performance and efficiency. Even though the employer’s monitoring mechanisms are limited in remote work, employees continue to bear responsibilities for tasks within the scope of their job description.
6. PRINCIPLE OF EQUAL TREATMENT IN REMOTE WORK
The obligation of equal treatment, a fundamental principle of the Labor Law No. 4857, also applies to remote work. According to this principle and Article 14, remote employees, based on the nature of their employment contracts, cannot be treated differently from their counterparts performing the same work unless there is a substantial reason.
The concept of a substantial reason includes objective and job-related situations, such as the nature of the job, employee performance, or occupational health and safety. In the absence of such reasons, disadvantaging remote employees compared to their on-site counterparts would constitute a violation of the principle of equal treatment.
Particular attention should be given to the following:
Wages and Fringe Benefits: Remote employees should not receive lower wages or fewer benefits than their on-site counterparts. Performing the same work with the same qualifications remotely should not adversely affect the employee’s salary or other social benefits.
Promotion and Career Development: Remote employees should not face discrimination in terms of promotion, training opportunities, or career development compared to their on-site colleagues. Employers should not view remote work as a disadvantage and should offer equal opportunities.
Termination and Job Security: Remote work should not disadvantage employees concerning termination of employment. Working remotely should not, in itself, be a reason for dismissal.
7. PROBLEMS AND SOLUTIONS IN PRACTICE
With the increase in remote work, some challenges have also emerged in practice, typically relating to supervision, working hours, occupational health and safety, and transformations in work relationships. Below are some key issues encountered in practice and proposed solutions:
a) How to Legally Monitor and Track Employee Performance and Discipline in Remote Work?
One of the most common issues employers face in remote work is monitoring employee performance and adherence to work discipline. It can be challenging to determine whether employees, who are not physically present at the workplace, are performing their duties regularly and efficiently.
Proposed Solution: Employers can develop methods to measure employee performance using digital tools. Performance tracking software, monitoring deadlines, and goal-oriented working methods can be applied in this process. Additionally, the progress of work should be tracked through regular online meetings and reports. Employers should establish performance criteria and sets of rules for these issues, communicate them to employees, and provide training if necessary. The “workplace regulation creation” we often recommend to employers becomes even more crucial in remote work situations. While remote work provides flexibility, it is essential to define work discipline and monitoring within a legal framework. However, employers should be mindful of employees’ privacy rights and avoid excessive monitoring, as this could lead to allegations of harassment.
b) How to Determine and Prove Overtime in Remote Work?
The flexible nature of remote work can cause issues in determining working hours. Problems commonly encountered in remote work include employees’ inability to maintain a work-life balance and pressure to work overtime. It is crucial to clarify how overtime pay is determined and calculated when employees work flexible hours at the employer’s request.
Proposed Solution: Working hours for remote employees should be clearly defined, and overtime should be regulated through written instructions. Supreme Court rulings indicate the importance of concrete evidence in proving overtime, with key evidence being as follows:
Clearly Defined Working Hours: The employment contract should specify the daily and weekly working hours for the remote employee. This way, the boundaries of overtime can be clearly defined, and both parties have a clear framework for working hours.
Review of Phone, Email, Computer, and Software Records: The employee’s phone call records, login/logout times on the computer, sent emails, activities in applications, and program usage times play a significant role in proving overtime.
Reporting of Working Hours: If remote employees regularly report their working hours, these reports can serve as documentation of the hours worked and indicate whether overtime has been performed. Sending reports to the employer via email can facilitate the proof of overtime.
c) How to Ensure Occupational Health and Safety in Remote Work?
Occupational health and safety present a significant issue in remote work. There are frequent uncertainties regarding how to assign responsibility and determine the necessary precautions when accidents occur in employees’ homes or other remote working environments. Employers may find it challenging to adapt health and safety measures to remote work settings.
Solution Recommendation: Employers should verify that the remote working environment in employees’ homes is safe and provide guidance on this matter. Remote employees should receive occupational health and safety training and be informed about maintaining ergonomic work arrangements. Additionally, employers are encouraged to collaborate with occupational health specialists and safety experts to reduce risks related to workplace accidents and occupational diseases.
d) How to Ensure Data Protection and Privacy in Remote Work?
Remote work also carries risks concerning the protection of both employers’ and employees’ personal data. Employers should clearly outline how they will secure employees’ personal data and company confidential information in remote settings. Data security breaches can arise when employees have company data on personal devices used for remote work.
Solution Recommendation: The following measures can help secure personal data in remote work:
Updating Security Policies: Employers should update data security and privacy policies to reflect the new remote work environment. These policies should include guidelines on the digital tools and security software employees should use, as well as data storage and transmission rules.
Compliance with KVKK: Under Turkiye’s Personal Data Protection Law (KVKK), employers are responsible for protecting employees’ personal data. Thus, in situations where employees’ data is processed, stored, or shared with third parties, obtaining explicit consent is essential.
Employee Training: Employers should educate employees about data security and privacy in remote work. Employees should be made aware of cybersecurity risks and methods to ensure data privacy.
Digital Signature and Access Permissions: Secure identity verification methods (e.g., digital signature, two-factor authentication) should be used for employee system access. Access permissions should be limited strictly to task-related needs, avoiding unnecessary authorizations.
8. CONCLUSION
Although remote work is rapidly developing as a working model in Turkiye, many legal aspects need careful consideration for both employees and employers. Clearly defining remote work conditions in employment contracts—especially regarding working hours, overtime monitoring, data protection, and occupational health and safety—is crucial to prevent potential disputes. Ensuring a balance between safeguarding employees’ rights and maintaining productivity is fundamental to the success of this model. Proper application of the legal framework will make remote work sustainable and efficient for both parties.
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