1.1 Remote Work and Hybridization of Employment Forms as a Challenge for Labor Regulation

This chapter applies the volume’s interactive approach to the handling of remote work by labor institutions, underlining the complexity of labor contracts and their tendency to combine locational elements of work with other crucial dimensions of worker status such as the number of hours worked or the length of contract. The chapter devotes considerable attention to studying the construction of regulatory systems for remote work by highlighting the crucial role of the subsidiarity principle and the combinatory dynamics of levels, forms, objects, and rationales of regulation. Finally, this contribution also addresses policy-oriented questions, proposing the construction of a holistic frame of governance intended to reinforce labor rights for remote workers.

The combination of advancing technologies and transformations in our thinking about work has promoted increasingly diverse forms of non-presence at work. As the International Labor Organization (ILO) has underlined, the institutionally rooted statistical definition of this phenomenon is in itself a complex matter. Indeed, currently there is no fully agreed-upon international statistical definition of remote work. The challenges involved in the definition of such forms of employment are pointed out by the ILO:Footnote ¹ As is elaborated in this ILO technical note, remote work can be described as situations where the work is fully or partly carried out in an alternative worksite.

In practice countries have used slightly different operational definitions of remote work, typically based on two different components (Eurofound 2021). One of those components specifies that the work is fully or partly carried out at an alternative location other than the default place of work, whereas the second component involves the use of personal electronic devices such as a computer, tablet, or telephone to perform the work: The use of personal electronic devices is an essential part of the definition. Telework, as defined above, is a subcategory of the broader concept of remote work. It includes workers who use information and communications technology or landline telephones to carry out the work remotely. Similar to remote work, telework can be carried out in different locations outside the default place of work. What makes telework a unique category is that the work carried out remotely includes the use of personal electronic devices. Work at home refers to work that takes place fully or partly within the worker’s own residence.

Work at home is part of the crosscutting variable “type of workplace” in the resolution concerning statistics on work relationships (ILO 2018), which provides information on the type of location where the work is usually performed. Based on the definition of the type of workplace provided in the resolution, work at home is any work taking place within a residential building or other type of dwelling in which the worker normally resides (ILO 2020, pp. 268–270). Thus, these concepts are interrelated and have some degree of overlap. Telework, for example, can be performed in the worker’s home, and a home-based worker can also telework. One important point to underline in this constellation of forms of homework is the idea of hybrid forms that present important consequences not only for employers but also for employees (Countoris et al., Reference Countouris, De Stefano, Piasna and Rainone2023).

It is important to emphasize that the boom of home-based work includes very diverse combinations of the two elements of this genre’s definition: the locational and the technological (Telework and ICT-based mobile work Publications Office of the European Union, 2020). These combinations vary by country and by sector of production. Thus, the locational element may refer to the worker’s home or to another space of the worker’s choice, and the technological factor is also significant, this being what differentiates it from remote work.

The diverse combination of location and technology in the current frame of labor regulation provides a challenge for the defense of fundamental rights for workers. This theme and its connection with political debates are taken up in Labor Law and Democracy (2022) by Mark Barenberg and other authors who focus on this challenge, by proposing a new labor law based on a deepening of democracy. From this perspective, the debate on the fundamental rights of remote workers stands as a component of the larger demand to intensify the democratic profile of labor regulation (López López, Reference López López, Cornell and Barenberg2022). Harry Arthurs (Reference Arthurs, Davidov, Langille and Lester2024)Footnote ² has argued that strengthening the future of work-related law stands as part of a larger project of political and social transformation. All the institutions of labor law as a democratic institution should help in the implementation of principles and rights that lessen or reduce inequality. From this perspective the question that is raised here is whether or not new forms of decentralized work and their management can help in that purpose. The historical context is a propitious one for posing this question: In 2021 the ETUC (European Trade Union Confederation) called for a year of more democracy.

The right to equality and nondiscrimination recognized for this type of employment should be interpreted as a key to democratic progress in the workplace, and thus to the goal of democratic deepening (Fishman, Reference Fishman2016, Reference Fishman2019; Roberts, Reference Roberts, Cornell and Barenberg2022) – reflected, for example, in democracy at work and postindustrial justice.Footnote ³ A firm basis for pursuing that goal lies in the principle of the right to fair and decent work for all (Freedman et al., Reference Freedman, du Toit, Graham, Howson, Heeks, van Belle, Mungai, Osiki, Bogg, Ford and Novitz2020). This constellation of interrelated themes identifies major issues at stake in the treatment of remote work.

Hybridization of employment status is reflected not only in the employment relation but also in the sources of regulation – including both hard and soft law and corporate social responsibility – and in forms of telework differentiated by their combinations of “presentiality” and remote work and their interrelationship with other contractual typologies such as part-time work and temporary work. An additional element of complexity involves the way in which telework challenges conventional understandings of national borders in the legal regulation of work.

1.2 Interaction of Actors and Sources of Regulation in Remote Work: About Inverted Subsidiarity

In a general sense the hybrid forms of combination between technological and locational innovations in work create challenging questions centered on principles of labor rights and the sources of regulation – and regulatory systems for remote workers. The pressure generated by this complex and fragmented reality of work-status has induced a hybridization of the regulatory model reflected both in the initiatives or practices of actors – supranational and national institutions, workers, entrepreneurs, unions and employers’ associations – and in the sources of regulation – for example in law, collective bargaining, and agreements. This in turn puts in place consequences for the enforceability of regulations – as shaped by hard law, soft law, and intermediate categories – at multiple levels, including the international, supranational, regional, and local arenas. The resulting spillovers of such complex dynamics have to be understood in a holistic frame. More concretely, the spillover of regulatory consequences from the treatment of remote work to other arenas generates a complex and dynamic scenario involving the impact of homework on the broader employment regulation system. One example is the role played by governance principles such as subsidiarity in the distribution of regulatory competences among actors. The interactions among levels, actors, and institutions involved in the governance of home workers create interesting spillovers that transform the complete employment regulation system. Crucially, given the multilevel interactions stressed here, it is necessary to introduce the principle of subsidiarity into debates on governance of new work arrangements.

The subsidiarity principle is, in practice, an important reference in handling the relations and interactions between different levels of policymaking and regulation whether the matters involved concern the updating of regulations initially formulated in the context of traditional forms of work, or other concrete issues. Subsidiarity implies the sharing of competences in governance across multiple “levels,” through the principles of participation and proportionality. Supranational institutions under this principle only intervene in specifying regulations if, at the national level, it is not possible to achieve the goals stipulated in general terms at the supranational levels. International scholarship on this question has pointed to advantages of this principle centered on its respect for a variety of solutions to shared problems and in the specification of how to guarantee human rights (Carozza, Reference Carozza2003). An important contribution of Sciarra has elaborated the significance of this principle for the EU and for European labor law (Sciarra, Reference Sciarra2023). The work of Bogg has identified connections between this principle and all coordinated human activity while specifying how it permits the promotion of decent work (Bogg, Reference Bogg2013).

The subsidiarity principle holds a great deal of concrete relevance for regulating remote work. In the construction of levels ruled by the subsidiarity principle the ILO Conventions serve as a floor of reference. A cornerstone is provided by the hard law regulation of domestic work in ILO Convention 177, Home work Convention (1996). This international norm defines homework, art COI 177, Article 1, as work carried out by a person, in his or her home or in other premises of his or her choice, other than the workplace of the employer for remuneration; which results in a product or service as specified by the employer, irrespective of who provides the equipment, materials, or other inputs used in the work. This Convention and Article also include the definition of the employer.

Article 5 of the Convention stipulates that national policy on homework shall be implemented by law, regulations, collective agreements, or arbitration. Consultation in the implementation of this stipulation at the national level is required in Article 3 of the Convention.

Using the lens of subsidiarity, this ILO Convention guarantees that its content serves as a minimal floor without undermining more favorable provisions applicable to some homeworkers under other international labor Conventions.

Thus, this Convention sets a minimal floor for national-level regulation. In Article 4, this minimal floor is developed as the promotion of equality of treatment for homeworkers when compared to the conditions applicable to the same or a similar type of work carried out within an enterprise. The Article includes under the principle of equality the homeworkers’ right to establish or join organizations of their own choosing and to participate in the activities of such organizations; protection against discrimination in employment and occupation; protection in the field of occupational safety and health; remuneration; statutory social security protection; access to training; a minimum age for admission to employment or work; and maternity protection.

At the level of the European Union, the application of the subsidiarity principle is established in Article 5 of the Treaty; this principle raises very important questions about the role of the State and its limits (Carozza, Reference Carozza2003), and it holds broad implications for social actors (Bogg, Reference Bogg2013) and cooperation (Iglesias, Reference Iglesias2017). The most crucial point in the case of remote work and its impact on employment regulation is the central role played by collective agreements at the European Union level to set the minimal floor of regulation and rights. In the governance of remote work, EU regulation has in effect implemented what we could call an “Inverted Subsidiarity” in which the ordering of instruments of regulation – either at the EU level or at the member state level – is quite different from the most common pattern. At the supranational level, EU regulation of remote work has been articulated around a Framework Agreement that is an EU-level collective bargaining accord that sets the principles of regulation, whereas the national-level implementation is pursued through both Agreements and statutory regulations. The bases of the Framework Agreement are, as in the international ILO Conventions, to protect equality and nondiscrimination and additionally the voluntary character of remote work, including its reversibility.

Until 2021 the Framework Agreement had only modest results. However, given prevailing circumstances during the pandemic, in 2021–2022 arrangements for the implementation of remote work expanded greatly in the member states. Different patterns of implementation by member states (involving hard law, soft law, and hybrid instruments) suggest that the regulation of homework has been characterized by a hybridization not only in the definition of the case but also in the sources of regulation and the results.

The historical basis for the key Framework Agreement extends back to the beginning of the twenty-first century: In 2001, the ETUC, the Union of Industrial and Employers’ Confederations of Europe (UNICE)/the European Association of Craft, Small and Medium-Sized Enterprises (UEAPME), and the European Centre of Employers and Enterprises providing Public Services (CEEP) signed a framework agreement on teleworking. The purpose of the agreement was “to give more security to employed teleworkers in the EU.” In order to fully understand this important accord, it is useful to analyze the regulatory period in which important Directives were approved and also to specify the interactions between those Directives, interactions which made them complementary to one another.

Key legislative provisions rooted in the Framework Agreement have been implemented in Austria, Belgium, Bulgaria, Croatia, Czechia, France, Germany, Greece, Hungary, Ireland, Italy, and Spain. One point which is very interesting is that the elaboration of national-level agreements on telework lacks an implementation of gender equality. The irradiation of the Framework on Telework in national-level collective bargaining is clear in the application of its voluntary status (in Belgium, France, Spain, Italy, and Luxembourg) but not in the defense of gender equality or equal pay. These latter objectives have to be guaranteed at the statutory level. The acquis communautaire guarantees these rights, and statutory regulation at the national level has to complement the deficits in social rights for remote workers. Directives on equality and nondiscrimination, on collective dismissal, health and safety, and information rights have to be applied to guarantee social rights for remote workers.

To understand the case of remote work regulation in a holistic way it is necessary to insert it within the normative cases of negotiated Directives. These Directives promoted many significant regulatory measures, including a greater protection of part-time work – Directive 97/81 – on fixed-term contracts and the prohibition of abuses – Directive 1999/70 – together with the Directives on equality – Directives 2010/41, 2006/54, and 2004/1113 – as well as later the Directive on reconciliation 2019/1158. This entire set of EU regulations was produced by both acting on the segmentation of workers’ status and by building a regulatory common ground defending equality and nondiscrimination. The holistic frame of regulation, as is reflected, for example, in these Directives, is best understood as an instance of labor law institutions protecting vulnerability.

The flexicurity model promoted during that period was based on the combination of flexibility of entry and exit from employment with security rooted in steps designed to ensure the employability of workers through vocational training and unemployment coverage. This model was based on a series of balances between flexibility and security measures. Within this scheme, the remote work model did not take off in a generalized manner until the global outbreak of the pandemic.

From 2001 to 2020 the implementation or impact of the 2001 Telework Agreement was modest. This was not the case with the Part-Time Agreement (1997), which, as a negotiated Directive, had an impact on the organization of the member countries in this area and which took voluntary work and the principle of equality and nondiscrimination as the basis for the regulation of that form of work. Thus, the first important developments in forms of regulation of part-time work and telework date from two decades ago, encompassing several common principles – voluntariness and reversibility – and fundamental rights – equality and nondiscrimination. However, the impact of these regulatory principles on the management and the prevalence of telework was not significant until the pandemic. These modest results of the Telework Agreement might initially have appeared to reflect the fact that the regulatory document was an agreement between negotiating partners rather than a Directive as was the case with the 1997 regulation of part-time work. However, during the pandemic, the application and use of the 2001 Agreement grew very substantially, thus suggesting that the earlier limitation in its application was based on factors other than its formal character. Crucially, in a comparison of these two management instruments – on part-time work and teleworkers – in terms of content, the Telework Agreement presents a thoroughness in the recognition of fundamental rights that does not appear in the Directive on part-time work, nor in that of temporary employment.

In my analysis, the economic context and the policies chosen to overcome the COVID crisis were decisive. The pandemic-based economic crisis was marked by the end of austerity-oriented economic adjustment policies and the implementation instead of interventionist policies of another paradigm. In this sense, the COVID pandemic has meant not only an economic, social, and humanitarian crisis worldwide but also a change in the economic paradigm shaping how the crisis was faced. In the previous crisis, the dominant response paradigm in Europe emphasized austerity, an approach that was questioned by a very significant sector of economists (Akerlof and Shiller, Reference Akerlof and Shiller2009; Piketty, Reference Piketty2014). The response to the COVID crisis instead promoted economic expansion. Economic practice in this context facilitated remote work and telework not only to address the public health situation that the pandemic brought about but also as an approach to the organization of work in the future. In this sense the analysis of remote work and workers should be contextualized by placing these phenomena within a time of paradigm shift intended to address the economic crisis not through austerity and cutbacks but instead through a model of intervention with public policies of social spending and through flexible approaches to the organization of work.

The definition provided by the Telework Agreement in Article 2 tries to cover the various manifestations of this type of contract, thereby reflecting its underlying complexity. Telework is defined as a form of organization and/or performance of work using information technology, within the framework of an employment contract or employment relationship, in which work that could also have been performed on the employer’s premises is usually performed away from those premises.

This Agreement has been incorporated – in its distinctive form of implementation – in the different national models and is reflected in the norms, conventions, and instruments of corporate social responsibility which, in cases such as Spain, Portugal, Italy, or Austria, have transplanted it into the national legislation of the member countries. There is a dynamic of implementation in a process that is inverse to the cases of part-time and temporary contracts in which the hard law norm (namely in a negotiated Directive) is located initially at the community level and then radiates to the member countries, whereas in the case of teleworking the Agreement (itself an example of soft law) radiates to the member countries, where it ultimately becomes hard law (manifested in legislation or collective bargaining agreements) and in all cases the central underlying principles embodied in the regulatory approach – namely voluntariness and reversibility – and the linkage to fundamental rights are preserved.

This application of the subsidiarity principle presents several important features. A main one is that collective bargaining is, in this instance, the instrument providing the initial minimal floor at the EU level. This holds consequences in the interaction of levels of regulation and degrees of enforceability of the regulatory systems, because the initial EU floor is not a hard law instrument. However, in some member states the rules agreed upon in the Agreement have been transformed into hard law regulation at the national level. Crucially, the Charter of Fundamental Rights stipulates in its Article 51 that rights guaranteed by the Charter must be applied when the member states are implementing other elements of EU law. This means that a holistic reading of the acquis communautaire and its implications for applying negotiated framework agreements – in our case for home workers – leads to the promotion of the principles and rights elaborated in the Charter under the principles of subsidiarity and proportionality. In this instance the subsidiarity principle ultimately leads to a strengthening of enforceability in many member states.

In 2001, the Telework Agreement included a series of rights for teleworkers, putting in place hallmarks of this type of work that do not exist to the same extent in the negotiated part-time and temporary contracting Directives. In this sense, this Agreement has an intensity in the content of labor rights that presents a noteworthy potential for development. Together with the fundamental rights that are recognized, there are two principles that I view as significant, that of voluntariness and that of reversibility, both of which incorporate labor rights into the management of remote work. The process of being able to influence the choice between forms of work implies a right of worker participation that is also guaranteed in the implementation of reversibility. This voluntariness in the case of part-time teleworkers is reinforced by the interaction of the different regulations (Prassel, Reference Prassl, Bogg, Costello and Davies2016; Novitz, Reference Novitz and López López2022).

The principle of voluntariness reinforces the consensual nature that the implementation of these forms of work organization has in the legal framework established by the Agreement, an approach that repeats the legal framework for part-time work in the 1997 Directive and the Agreement that gave rise to it. It is a form of implementation of the negotiation process that has provided the basis, for example, in the Spanish case, for the Courts to require employers to justify refusals to make changes requested by the worker in an application of the reversibility principle.

Another crucial point is that the elaboration of national-level agreements on telework lacks an implementation of the commitment to gender equality. The irradiation of the Framework on Telework in national-level collective bargaining is clear in the application of this type of work’s voluntary status (Belgium, France, Spain, Italy, Luxembourg) but not in the defense of gender equality or equal pay or training (Eurofound dates, Telework in the EU: regulatory frameworks and recent updates, 2020).

The analysis of the principles and fundamental rights of teleworkers in the regulatory order and of that order’s interaction with other forms of labor relations is of fundamental importance in assessing how to deepen democracy in labor relations. The axes underpinning and articulating social rights have to be interconnected to the right of equality and nondiscrimination, understanding the meaning of equality as dignity (Barnard and Hepple, Reference Barnard and Hepple2000; Hepple, Reference Hepple2001), a principle that has one of its most important inscriptions in the broadly understood right of participation. Thus, the starting point, in my assessment, is to articulate the rights of teleworkers around fundamental rights that are key to structuring progress in democracy. This involves, above all, the rights of equality and nondiscrimination as manifestations of dignity, an approach that promotes not only the elimination of discrimination but also the correction of differential gaps in outcomes.

As I have argued, the Telework Agreement, with its long history of management of labor relations, is the key reference for embedding the regulation of this form of work in an affirmation of fundamental principles and rights of labor relations not only at the EU level but also at the national level. At the level of the member countries, regulation instruments vary according to national models; in addition to the domestic legal norms there are national collective agreements and other soft law instruments resulting from corporate social responsibility.

Concerning the rights that are included in the different instruments at the level of the member countries, and that could be grouped around equality and nondiscrimination, it is useful to view them as vectors of progress in the improvement of democratic structures (Roberts, Reference Roberts, Cornell and Barenberg2022). The rights of equality and nondiscrimination – in their provision for conciliation, training and participation, and including the management of the rights to health according to the Directive 89/391CEE, and to the specific Directives, national legislation, and the relevant collective agreements – offer an itinerary of progress in elaborating democratic structures in the workplace. The right to equality and nondiscrimination is further nourished by another set of fundamental rights, namely, the rights to dignity and privacy, the contents of which are defined in the Agreement, in national regulations, in collective agreements and in corporate social responsibility.

The telework legal framework guarantees that the employer should respect the private life of the teleworker. In the Spanish case, this is elaborated in interaction with EU rules related to the right to privacy and the use of digital devices in the workplace, as is provided for in Spain’s Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights and at the EU level in Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016, on the protection of natural persons.

The interactions between the right to equality and the principle of inclusive solidarity have a main reference in the Charter of Fundamental Rights. Underpinning those interactions, understanding equality as inclusive solidarity (López López, Reference López López, Cornell and Barenberg2022), are initiatives to address the conciliation of family and work life, technological training, and to elaborate collective rights in all levels of participation such as social dialogue, collective bargaining, and the freedom to protest and to obtain information. For example, Directive 91/533/EEC establishes that the employer facilitates pertinent written information to the teleworker. If the employer undertakes online supervision of telework, the means used must be proportionate to the objective and introduced in accordance with Directive 90/270 EEC, relating to display screens. Digital disconnection, as a recognized right, is linked to work and rest times, and to the principle of reconciliation of work and family life, as well as occupational health and can therefore be inserted within the right to equality and nondiscrimination that has been presented here as a major point of reference. Collective bargaining agreements as well as corporate responsibility instruments also play a crucial role entering into the regulation of this form of work. This interest by labor relations negotiating partners in telework and its regulation does not occur in the same way for part-time work and temporary work, although it should be said that there are differences in the intensity of this coverage according to sectors of activity.

A useful example in the Spanish case is the sector collective agreement for the financial sectorFootnote ⁴, which in its Article 14 integrates the principle of voluntary work for telework by employees is to be reflected not only in the implementation of telework arrangements but also in their reversibility. The collective agreement also provides mechanisms to guarantee some working time in the workplace.

In its Article 14, this agreement specifies the rules or principles of telework as voluntary and reversible, either by the will of the company or by the worker. It also includes, in Article 15, the digital rights of the workforce, which, among other points, include the right to digital and labor disconnection, training, and participation. In the collective agreement, digital disconnection is understood to be rooted within the limits set between work and rest time and with an impact on life planning.

Digital disconnection is linked to the right to health and with the reduction of technological fatigue or stress. Finally, the right to worker training is defined in this collective agreement by integrating the right to digital education. Companies commit to training their personnel in the digital competences and skills necessary to face the digital transformation and thus facilitate their digital reconversion and adaptation to new jobs, as well as their participation rights in the implementation of algorithms within the right to artificial intelligence.

On the other hand, collective bargaining agreements are making advances in the definition of forms of discrimination that occur in the technological environment. For example, the second bargaining agreement of TelefonicaFootnote ⁵ defines cyberbullying through the principle of prevention. This content of collective bargaining agreements on existing categories of protection against discrimination and harassment in technological fields is important. A framework collective agreement was signed between employers and employees (ANEC 2023)Footnote ⁶, which includes the commitment to promote telework as a flexible and negotiated form of work. The agreement includes the right to digital disconnection and promotes policies of human control of IA.

Levels of regulation, sources of regulation, and regulatory contents all interconnect labor institutions in a broad governance scenario that holds important consequences. These consequences are to be found in both principles and rights – including voluntariness and equality and nondiscrimination, privacy and dignity – and in substantive results – for example limiting the employers’ power to extend working time and in the right to digital disconnection – and creating a common floor of fundamental rights for all workers.

1.3 A Fragmented Regulatory Framework to Protect Vulnerability: Reconstructing the Holistic Approach for Remote Work

Key values for labor law and labor institutions are freedom, autonomy, dignity, equal respect, democracy, and social justice (Collins et al., Reference Collins, Lester and Mantouvalou2018). In the goal of achieving decent work for all, including home-based workers, the argument presented here underscores the advantages offered by a holistic approach not only for promoting scholarly understanding but also in practical terms for addressing the human needs of workers. The interactions among actors, institutions, and rules reinforce the agency of actors (as is reflected in the voluntary character of work status and in negotiation) and the fulfillment of the guarantee of equality and nondiscrimination by leveraging interconnections between specific treatments of that principle. Home-based work has changed the rules of more traditional forms of employment, for example, in the entrepreneurial power to design the workplace. The hybridization of forms of regulation and governance and the complexity of the spectrum of forms of work in the labor market have established a complex new scenario that can only be fully understood through a holistic perspective. Moreover, the interactive application of rules generated by multilevel regulatory systems is crucial to maintain the visibility of workers and the enforceability of labor rights. Decent work for all in the Agenda of the ILO is understood to require respect for international labor standards shaped through social dialogue and promoting the rule of law at the national and international levels through nondiscriminatory laws and policies for sustainability. In a scenario of fragmented labor law protections that address specific types of vulnerability one by one, it is crucial to construct and apply a complete system of protection for remote workers that ties together different components of vulnerability. This interactive approach holds the promise of strengthening fundamental rights for remote workers by drawing on their multiple forms of vulnerability.

I have argued that the evolution of legal regulation of remote work can contribute to such ends not only because of how it is handled as a specific matter but instead because of how it interacts with other types of work and their regulation. The overall legal structure of labor regulation provides strong grounds for fortifying the defense of worker rights through such interactions.