“The illiterate of the 21st century will not be those who cannot read or write, but those who cannot learn, unlearn and relearn” Alvin Toffler.
We learned labor law as a branch of legal sciences, a summation of concepts and theories, that little by little has been clashing with reality. Labor law structured for a society and an organizational system that has changed at a dizzying speed violates the purpose of law in general. Far from becoming a facilitator of processes or labor relations, labor law has become an obstacle, a barrier. For many executives and labor lawyers, the world is still “round”, and not “flat” in the style of Thomas Friedman. Some time ago, we stopped living in the round world that generated so many controversies, debates, and theories. The connectivity and even more, the hyperconnectivity of the Fourth Industrial Revolution, or Revolution 4.0, revealed that the world is not “round,” but truly flat.
More than answers, more than solutions, old school labor law was involved in trying to apply its outdated and stale theories, developed in definitions that in many cases were elaborated by the Romans, or by some other ancient civilization. Concepts that applied to cases generated during the First Industrial Revolution were until most recently utilized ad nauseam. Labor law has repeated the error that labor relations differ from non-labor relations in areas such as hierarchical structure, subordination to orders, salary payment, and the personal provision of services. A hierarchy depends upon the ability to give orders, issue instructions, and apply threatened disciplinary measures. At the same time, the hierarch applies a series of General Principles of Law, whose nature is immovable and immutable: the Principle of Protection, Irrevocability of Rights, and the Primacy of Reality, among others, which are applicable in most Latin American jurisdictions. However, according to Thomas Friedman’s The World is Flat, the labor law that we knew began to conflict with reality when an order that was placed at a McDonald’s drive-through in the US, was taken, not by an onsite employee, but rather by someone thousands of miles away, in Bombay, India, or Kuala Lumpur in Malaysia. A specialist doctor in Japan could be analyzing X-rays, which he received from a clinic in an American hospital or an Amazonian town in Brazil. The world has flattened out, although that labor law still sees it as round. Another example of the rudimentary nature of our labor legislation, in general, is when it tries to serve as a facilitator for issues of collaborative economies. For example, the use of a technological platform by a service user who requires a service that a third party provides via the platform connection does not, from my professional perspective, generate a bond of traditional work nature. This is a clear example where labor law collided with the reality of the simplicity of labor regulations. Faced with this perspective, our judges went from being applicants of the law, of legal regulations, to “legislators”, or “generators of laws”, since, through the issuance of sentences, and therefore the interpretation of rights in specific cases, have been “regulating” where labor law does not regulate. This is not the correct exercise of the application of the law. The right must respond to a social need, through the laws that the legislators generate, in a parliamentary exercise. The judge does not create the norm; the function of the judge is to apply the norm to a concrete case even though jurisprudence interprets the law.
Labor law in most Latin American jurisdictions, such as Costa Rica, has been an obstacle to the development of labor relations with a futuristic vision. An inflexible right, which, protected or hidden in concepts such as the Protector of the Worker and his Public Function, unilaterally determines that a judge can ordain that he knows what is best for the parties in an employment relationship, even when the same parties that his order claims to protect do not necessarily want such “protection.”
The life-work binomial increasingly needs greater flexibility in labor relations, flexibility that allows the parties to structure the way they would like to do that work. The new forms of work and human management require the possibility that the worker and the employer can determine different types of hours and days. A current worker may need to go to work in the middle of the morning, then have free time to study and then complete his workday again. A worker may need to work from an area far from the workplace or even from a country other than the place where the physical workplace is located. An operation may need to work for previously set results or objectives, and not for compliance with a schedule on a specific day. All this is complicated, when the labor law, is limited to saying that, as a measure of protection to the worker, the work schedule must be established in a period fixed by law, and that any modification, even by agreement of the parties, is illegal, and could lead to administrative inspection processes for non-compliance with labor laws.
Although labor law responds to different needs according to social, economic, and political factors of each jurisdiction, the phenomenon of hyperconnectivity and therefore of the Fourth Industrial Revolution, has worldwide repercussions, being “a train” to which sooner or later, we will have to go up. We must choose whether we get up to the speed it takes now, or we wait longer until the risk and the damages generated could be much greater.
It is convenient to unlearn and relearn on issues of work flexibility. Labor law must set limits and maximums that protect both parties to the employment relationship. It must set limits that do not allow excesses to the detriment of the worker’s health, but it must allow the parties to agree within those limits more openly. The worker must have the freedom to establish their hours and working days, making the necessary combinations, so that in this way they can balance their private life and work.
There are countries in Latin America that do not have laws that regulate remote work, telework, remote work, or the qualification that each jurisdiction has given to this type of work. As a result of the global pandemic events, some countries have had to face the need for remote work, with regulations such as decrees, regulations, or even internal regulations, generated by agreement of the employer-worker parties. What, if it is a reality, is that this type of work will be increasingly necessary. Here is another example of the slowness of labor law in general, to regulate and adapt to a work scheme that did not arise with the pandemic that we are going through.
The challenge for human management administrators within organizations is to document effectively and in accordance with what labor regulations allow, work done remotely. In labor law “the papers speak,” everything must be documented and duly accepted by the parties.
The need or possibility of telework or work from home (WFH) opened other avenues of labor legal analysis. There began to be cases of workers who left the country and continued to work normally from other jurisdictions. This represented another great challenge, related to immigration issues, social security coverage (for common illnesses), or occupational hazards issues (illnesses or accidents related to the work performed), without counting other thorny issues, such as which jurisdiction governs the payment of taxes on salaries. The labor laws of most Latin American countries have not addressed these prime concerns.
With the use of remote connection technology, many workers have expressed a sense of invasion of their privacy. Since, for the most part, workers must connect from their homes, this has generated questions about the power of the employer to demand the connection of cameras or even to connect without activating wallpapers. Again, in most labor laws in Latin America, there are no specific regulations that regulate the rights and obligations of both parties to the employment relationship related to privacy issues arising from remote work. For human management purposes, in jurisdictions where privacy aspects are not duly regulated, in addition to the constitutional rights that all jurisdictions have developed, it is convenient to generate, through instruments such as internal policies, the privacy issues that should govern the new ways of working.
The use of the employer’s equipment connected to non-institutional networks, as a result of remote connections, has generated the need to regulate, from the labor legal perspective, aspects aimed at the protection of information and the prevention of cyber-attacks. The labor legislation, in general, omits this matter. Organizations have taken the initiative, and through internal policies, they try to regulate such a complex issue with so many negative repercussions. The use of personal equipment by remote workers complicates matters. In many cases, the regulations generated by the employer invade spheres of privacy within the worker’s domain. Exposure to damages resulting from cyber-attacks where the worker’s personal equipment is used is becoming a significant issue.
Right to disconnect
Labor regulations in many of our countries date back to the 1940s, ‘50s, ‘60s, and ‘70s when labor regulations were directed at farm issues, bakeries, butchers, barbershops, etc. The time for connectivity to break into our lives and become part of them was unforeseen. With WFH, the ease of connecting to tasks that the worker used to perform in the workplace has begun to generate a kind of permanent or excessive connection. Sometimes, this excessive connectivity is generated by the worker himself, and in other cases by the employer, despite the negative repercussions that abuse of the connection could have for labor issues. Workers have recently been demanding the right to disconnect. Again, most of the regional labor laws have not properly developed this issue. The lack of legislation has been solved by internal communications and regulations generated by employers themselves.
Collective labor law
Hyperconnectivity related to the Fourth Industrial Revolution should not be seen as a strategy or kind of global conspiracy against the collective rights of workers.
Telework is often a convenient way to perform duties, and not a strategy to separate workers so that they cannot exercise their collective rights. The concatenated forces that generate radical and revolutionary changes require that different groups find the best ways to adapt to those changes. The leaders of collective rights must find ways to meet their union objectives, in conjunction with the global and organizational reality that exists. To fulfill their objective of collective protection, regional labor regulations must be adjusted.
The progress of several countries in Latin America on issues of the virtuality of the labor relationship has been important. By virtuality, we refer to the possibility of generating an employment relationship, where all documents from beginning to end are signed and archived online. The formulation of a job offer, the signing of the employment contract, the documents related to the disciplinary regime, and even the letter of dismissal or termination of employment and the corresponding settlement, can all be drafted, signed, and filed virtually.
Sexual harassment in the virtual workplace
Remote work has begun to generate situations that could configure issues of sexual or workplace harassment in its different forms. There are countries in Latin America that, since the ’90s, had already developed legislation on issues of sexual harassment as in the case of Costa Rica. With virtuality, situations have been generated in which workers have complained making it necessary to apply a due process of investigation, under the legislation or internal regulations that are in place for this purpose. It is very important that at the organizational level the necessary investigation policies and procedures generated comply with due process. The ease of connection at times and places outside the workplace has led to an increase in complaints that could be related to cases of harassment in its different forms. Organizations, through their human management departments, have increased resources for the drafting of internal policies that explain these issues and clarify the internal mechanisms that exist to generate complaints of harassment.
To summarize, I am surprised by the inertia of labor law and its divorce from organizational and business issues in general terms. This surprise is not a new phenomenon nor is it related to the change in the way we work. Labor law retains its relevance in “protecting the weakest part of the labor relationship,” which refers to all workers. Likewise, in many cases, such as the example of Costa Rica, labor law reiterates protections for union leadership. There is overprotection for leaders who, in many cases, do not go beyond seeking a series of gross personal or group benefits, obtained by common law or by professional law, such as abusive collective agreements. Faced with this dynamic of protections, very important issues have been put aside that allow labor law to be a facilitator in processes of organizational and social transformation. The discussions of the different interest groups (employers, workers, unions, the Ministry of Labor, International Organizations related to labor issues), should be focused on finding jointly the way to “get on the train of hyperconnectivity,” to generate advanced labor legislation, which allows organizations to achieve their business objectives while respecting the value of the worker as a human being. I finish by saying that we must unlearn the labor law we know and most importantly, relearn it, or else to paraphrase Toffler, we will become labor law illiterates.