The Lost Cubicle: Reassessing Work-From-Home Paradigms In The Post-Pandemic World

Current Domestic Regulatory Framework

Presently, there exists no singular law governing remote work in India, which implies that the rights of remote workers have not been given the same recognition which has been accorded to in-office employees. However, on multiple occasions, WFH has been acknowledged, recognised, suggested and even mandated by the Government of India. In 2018, the Right to Disconnect Bill was introduced in the Parliament of India by Member of Parliament, Smt. Supriya Sule. The Bill was the first of its kind to acknowledge non-traditional working styles, such as 'Work From Home (WFH)' and 'Work From Anywhere (WFA)'. Clause 15 of the Bill provides for the framing of a mutually agreed upon policy for employees who are working in remote areas or, involved in teleworking or working from home. Thereafter, the Ministry of Labor and Employment introduced the Draft Model StandingOrders, 2020, i.e, the Occupational Safety, Health and Working Conditions Code, which recognised and further enabled 'Work From Home' as an alternative to traditional office-based working models.

In 2022, the Department of Commerce amended the Special Economic Zones Rules, 2006 by adding Rule 43A which served as the basis for the first nationwide work from home policy applicable across all Special Economic Zones. Being a comprehensive set of regulations in itself, Rule 43A is one of the first of its kind to provide an ideal code for regulating work from home employment models effectively.

Furthermore, during the peak of the pandemic, the Ministry of Home Affairs directed that offices shift to work-from-home patterns and function at 50% capacity to control and prevent the spread of the virus. Similar steps were followed in other states as well. The Karnataka High Court took strict cognizance of a circular issued by the State Government directing all state government employees, including disabled employees, to report back to offices at 100% capacity amidst the pandemic. The petition, filed by the Karnataka Federation of the Blind, resulted in directions being issued to the State Government to reconsider the impugned circular in light of rights of disabled persons. Pursuant thereto, a subsequent circular was issued permitting disabled and visually challenged employees to work from home without loss of pay.

Judicial Advancements - Indian Outlook

On the judicial front, several milestones have been crossed pertaining to remote work establishments. In 2001, a peculiar case came for consideration before the Supreme Court of India. The issue therein was whether the usage of one room to attend some office files at home in a building leased for a residential purpose, renders a tenant liable for his eviction from the building under Section 13(2)(ii)(b) of the East Punjab Urban Rent Restriction Act, 1949. It has become commonplace for office-goers today to carry on office-related activities at their residence. More often than not, work assigned at the office is completed at home. With the rise of remote work, the issue raised in M/S Atul Castings Ltd v. Bawa Gurvachan Singh^[1] becomes of prime importance. The Division Bench comprising Justices D.P. Mohapatra and Shivaraj V. Patil drew a distinction between the usage of a room in a residential building for personal purpose and usage of such a room for business, industry or other commercial activity or as a regular public or professional office. The Apex Court observed that it was not uncommon for officials, executives, officers, businessmen, industrialists and people engaged in other vocations to have some homework to do since computers, internet and other like facilities are kept at home for convenience and use. Hence, mere use of one room for doing homework or study itself will not change the classification and character of the building and it continues to remain a residential building so long as its purpose remains as residential.

The Delhi High Court, in Saurabh Kumar Mallick v. Comptroller & Auditor General Of India & Anr.,^[2] laid down certain principles regarding the interpretation of the term 'workplace'. The Court, in its reasoning, emphasised that proximity from the place of work and the control of the management over such residence where a working woman is residing are relevant and determining factors, and that a residence has to be an extension or a contiguous part of the working place to come within the ambit of work place. In Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University,^[3] the Bombay High Court gave a liberal and wide definition of the term, 'workplace' to include all kinds of workplaces, encompassing residential complexes and dwelling units as well.

A significant step taken by the Central Government towards inclusivity of women employees was the Advisory issued for allowing nursing mothers to work from home during the COVID-19 pandemic, in pursuance of Section 5(5) of the Maternity Benefit (Amendment) Act, 2017. On this note, further interpreting the extent and applicability of Section 5(5) of the Maternity Benefit (Amendment) Act, 2017, the Karnataka High Court, in Prachi Sen v. Ministry of Defence and Ors., held that work from home benefit after exhausting maternity leave can be granted to a woman employee only if the nature of the work assigned to such employee makes it possible to do her official job from home.

A notable judgement on the issue of territorial jurisdiction was delivered by the Kerala High Court in Mangala v. Union of India & Ors. The court held that in cases where the employee is working from home on a mere concessional basis, jurisdiction would not be conferred on the court in whose local limits the employee is residing. While acknowledging on the lack of decisions by Indian courts on the issues relating the remote work and subsequently relying on precedents set by the courts in the United States of America, Justice Sunil Thomas adjudged that jurisdiction cannot be bestowed upon the forum state merely because the employer permitted the employee to work from a different jurisdiction.

Current International Regulatory Framework

Thus, shifting the limelight on the international front, several cases, legislations, and statutory codes related to remote work have emerged, which highlight the myriad issues lawmakers and stakeholders must consider while deciding whether the same needs to be codified. One notable example is the Russian Labor Code which distinguishes between different types of remote working agreements. It stipulates that teleworking agreements must be documented in writing, specifying all pertinent details of the remote arrangement, such as working hours and the designated telework location. Additionally, employers are obligated to furnish remote employees with the essential work tools and cover the associated costs for their installation, repairs, and maintenance. Another key addition to the existing paradigm is the Flexible Working (Amendment) Bill in the Netherlands, which provides for remote work flexibility for employees by enabling them to request for adjustment of their workplace, thus giving greater freedom to employees to choose their preferred location of working. On a similar footing, the EU Balance Directive was implemented in Sweden, which enables employees to request accommodations for flexible working arrangements when taking care of children or sick relatives. These serve as excellent sources when formulating WFH policies to prevent the exploitation of employees working from home. However, prior to proceeding with such a step, it is pertinent to refer to various judicial precedents addressing significant issues arising out of teleworking contracts, without which the extent of the lacunae arising due to the unregulated nature of WFH would remain unclear.

Judicial Advancements - International Outlook

In Paul Thai v. International Business Machines Corporation,^[4] the Court of Appeal of California relied on the decision in Cochran v. Schwan's Home Serv., Inc.^[5] and ruled that IBM's reimbursement obligation for the operating costs incurred by employees in performance of their actual work duties for IBM at home, does not stand changed in light of the COVID-19 pandemic. In Sedgwick CMS v. Valcourt-Williams,^[6] the plaintiff, who was engaged in a WFH arrangement, claimed compensation for an injury which occurred during the working hours. The Court of Appeal of Florida reversed the lower court's decision on the grounds that the accident and the risk of incurring the same would have continued to exist with or without the plaintiff's employment, thereby rendering it to not be an injury 'arising out of' or 'caused in the course' of her employment. However, it was noted that work from home arrangements do not deter workers from compensation claims, in the event that occupational causation can be attributed to the injury suffered.

In Montague v. United States Postal Service,^[7] the Fifth Circuit noted that the reasonableness of a plaintiff's remote-work request is a fact-specific inquiry and needs to be determined in light of certain factors, such as, the nature of the job, minimum mandated attendance, essentiality of employee's functions, employee's work experience, and consequences of non-performance of employee's functions. The Circuit Judge also noted that reasonable accommodation may include job restructuring and modified work schedules. However, in a dissenting opinion, it was also established that the plaintiff bears the burden of proving the reasonableness of an accommodation request to work from home.

In Perry v. National Association of Home Builders of the United States,^[8] it was categorically established by the Mayland District Court that “in remote work cases, a defendant's mere knowledge that an employee happens to reside in the forum state and conduct some work from home does not constitute purposeful availment”. This view resonates in Bertolini-Mier v. Upper Valley Neurology Neurosurgery P.C.,^[9] wherein it was held by the Vermont District Court that the “knowledge and facilitation of remote work was an accommodation and not a purposeful effort which would constitute purposeful availment for establishing personal jurisdiction”. The ratio given by the Minnesota District Court in Listug v. Molina Information Systems LLC^[10] clarifies the position of law in the aspect of jurisdiction, i.e., an agent's decision to work from home in the forum state generally does not bind an entity to personal jurisdiction in that state where the purpose of the arrangement is merely for the agent's personal convenience. However, this does not fetter the employee's right to bring an action against the employer in the forum state. In cases where the employee is proactively placed in a certain state or when the employer hires an employee from a different state with the intention to expand business in that state, the employer would be subjected to jurisdiction of the forum state.

In Stuart v. Churn LLC,^[11] the North Carolina District Court held the employer to be susceptible to the jurisdiction of the forum state on account of the employer supporting the plaintiff's work from home arrangement and providing resources for expansion of business on his behalf. This view is reflected in Hall v. Rag-O-Rama LLC,^[12] wherein it was held by the Kentucky District Court that before extending its jurisdiction over the defendant employer, the court factored in whether the defendant solicited the employment of the plaintiff in the forum state; whether the plaintiff worked predominantly from within the forum state; whether the plaintiff was a high-level employee in the defendant's business; whether the plaintiff signed the employment contract in the forum state; whether the defendant had knowledge of, and 'facilitated' the plaintiff's remote employment; and whether the work the plaintiff performed in the forum state advanced the defendant's business interests in the forum state.

Thus, it is crucial to recognize that the landscape of remote work introduces a host of other pressing issues that warrant legal attention. To iterate, they pertain to firstly, jurisdiction of the court in employer-employee disputes; secondly, compensation claims; and thirdly, ancillary disputes arising out of the unregulated nature of remote work-based employment contracts.

Need for Statutory Framework Regulating Telework

While certain legislations, like the Maternity Benefit Act, 1961, and the Special Economic Zones Rules, 2006, do enable WFH for certain classes of employees, a large sector of the working population engaged in remote work continues to remain without specific legal protection. The silence of the legislature and the lack of jurisprudence on WFH leaves many remote workers stranded when it comes to enforcing their rights, often resulting in ambiguity and challenges in seeking remedies for any grievances they may encounter in this dynamic work arrangement. The Constitution of India, 1950 guarantees the right to work and right to earn a livelihood, and promotes just and humane conditions of work along with a living wage for workers. While it still does not recognise remote work, the spirit of the Constitution does embody that equal rights, opportunities and benefits should be granted to in-office workers and remote workers under these provisions.

Letting remote work stay unregulated and unrecognised would serve to the detriment of those workers who do not have any legal sanction to rely on for backing their claims or posing their defence against unfair and discriminatory policies or malpractices which severely hampers the professional growth and well-being of an individual. There is a clarion call for a statutory guideline which recognises the multifaceted nature of remote work and affirms the legitimacy of WFH employment contracts. This comprehensive guideline must not only protect the rights of remote workers but also provide a framework for employers to effectively manage and support remote work initiatives, in pursuance of various government undertakings such as Start-Up India and Digital India. In a leading nation with the world's largest working population, WFH is a strong preference among many, as the benefits attributable to it are lump-sum with little to no drawbacks.

Key Recommendations

The proposed enactment must account for the following provisions:

1. Scope: All employers with a workforce of 100+ employees should have a WFH policy or include a separate clause in existing employment contracts concerning remote work arrangements for certain specified periods of time, in instances where it can be so permitted.
2. Definitions: Such policy/contract should clearly define terms such as remote worker', 'working hours', 'teleworking contract', 'compensatory leave'.
3. Overtime Hours: The policy/contract should provide for overtime hours undergone during WFH to be monitored and compensated at the same rate as for in-office employees.
4. Allowances: The policy/contract should provide for the reimbursement of latent costs additionally incurred in a WFH arrangement by the employees (similar to travel allowance and other remuneration heads).
5. Compensatory Leave: The policy/contract should contain provisions for availing compensatory leaves for employees working overtime during weekends, public and national holidays.
6. Jurisdiction: The policy/contract should explicitly state the appropriate court which would be deciding matters arising from a remote work agreement.
7. Dispute Resolution: The policy/contract should establish clear guidelines for dispute resolution and address any potential conflicts that may arise therein.
8. Data Privacy & Security: The policy/contract should specify measures to ensure data privacy and security in remote work settings, safeguarding both the employer and employee from potential breaches or unauthorised access must be incorporated. This is particularly crucial in an age where digital information forms the backbone of many operations.

Furthermore, the enactment should encourage and facilitate upskilling and professional development for remote workers, aligning with the government campaigns like Skill India. This would not only enhance the skill set of the workforce but also contribute to the nation's overall economic growth. The integration of remote work into our legal framework is not only a progressive step but also a necessary one.

The absence of dedicated legislation for remote work in India poses significant challenges for both employers and employees. The rights and protections afforded to traditional in-office workers are not extended to those engaged in remote work, leading to potential ambiguities and disputes. This gap in legal framework leaves remote workers vulnerable to various uncertainties, including jurisdictional complexities and unaddressed compensation claims. To address these pressing issues, it is imperative to enact comprehensive legislation specifically tailored to the nuances of remote work. This proposed legislation should encompass crucial definitions and provisions, such as compensation for unpaid overtime and clear guidelines for dispute resolution, while establishing a framework for addressing latent costs incurred in remote work arrangements, akin to travel allowances and other remuneration components. Ideally, jurisdictional concerns must be addressed to guarantee impartial resolution of disputes stemming from remote work agreements. In addition, paramount emphasis should be placed on ensuring data privacy and security within remote work environments, safeguarding the interests of both employers and employees in an ever-expanding digital realm. Through the acknowledgment and resolution of these critical facets, India can establish the groundwork for a resilient and fair remote work framework, promoting the flourishing of individuals both professionally and personally.