On this question, the Constitutional Court ruled in Judgment C-
103 of 2021, by which it declared enforceable paragraph 1 of Article 6 of Law 1221 of 2008 and declared unenforceable the paragraph of Article 6 of the same Law.
This judgment examines the nature and concept of telecommuting, noting that it is a “special labor modality for the provision of personal services, with differentiating characteristics, both in the relationship between the worker and the employer, and in the activities carried out by the telecommuter, necessarily using Information and Communication Technologies (ICTs).” In this ruling, the Court states that this modality of work, as it does not require the physical presence of the worker at the employer's establishment and given that its purpose is to allow the inclusion of people in vulnerable conditions, provides a margin of flexibility in the execution of tasks and compliance with working hours.
The Court placed special emphasis on the stipulation of working hours for the telecommuting modality, understanding that, given its flexibility, it allowed the telecommuter to carry out their work activities in such a way as to achieve personal development, since the creation of this modality aims to integrate people considered in vulnerable conditions into working life and thereby increase the productivity of companies.
Likewise, it noted that although there is flexibility in terms of compliance with the working day, where compliance with established goals and objectives prevails, the employer must guarantee the right to disconnection, understanding that the latter is a fundamental right and will increase the worker's productivity; likewise, it must guarantee compliance with the maximum legal working hours established by law.
Thus, and in the first instance, it is held that telecommuters are not entitled to recognition of overtime, surcharges, or supplementary work, declaring the enforceability of paragraph 1 of Article 6 of Law 1221 of 2008.
However, in the comprehensive study of the norm, the Court found that the text of the paragraph of Article 6 of the aforementioned law, in the part “telecommuting is carried out where the working day is verifiable,” is contrary to constitutional precepts, understanding that telecommuting, being carried out through Information and Communication Technologies, allows the identification and determination of the schedule and duration of the work, so it is not appropriate to restrict the recognition of overtime and supplementary work only to the “verified” condition when the execution itself allows it.
So, what does this mean? That the execution of tasks by telecommuters is subject to the working hours established between the employer and the worker, noting that flexibility and variation in the working day is an essential aspect of telecommuting, which does not generate overtime, Sunday, or holiday pay as long as the (48) weekly hours are not exceeded.
However, if the execution of tasks during these hours occurs due to an increase in workload or at the employer's request, the latter must recognize overtime and supplementary work, for which the rules established in the Substantive Labor Code will apply.
Prepared by: NATHALY MUÑOZ, Consulting Attorney.