Romanian employees working remotely from other countries: from theory to practice
Article by Roxana Tureac – Radu, Partner Rokas Romania, published in Lexology on Jan 27, 2022
Remote working for Romanian employees (contracted with a Romanian employer) from abroad is regulated mainly by Law no 81/ 2018 and is in theory possible, but is it actually happening? The main concerns of Romanian employers in case an employee is asking that they agree on remote working from another country, outside Romania (hereinafter called “the host country”), are outlined below.
According to article 17 of the Romanian Labor Law Code (RLLC), the employer is the one deciding upon the workplace. If the employee is asking for teleworking outside Romania, an addendum to the individual employment contract (IEC) must be signed, in which it is not mandatory anymore to mention the agreed workplace of a remote working employee. However, due to the consequences that may arise for both the employer and the employee from remote working abroad, not mentioning the exact workplace in an IEC cannot be interpreted as the choice of the telework place outside Romania to be at the sole discretion of the employee. The employee cannot decide himself/herself on the host country even though his/her employer agreed to remote working without explicitly mentioning the workplace in the IEC considering also that, according to article 8 of RLLC, the employment relationship should be grounded in good faith and mutual consent.
The employer is entitled to check on the employees’ activity, including also in the working place, mainly by using information and communication technologies. Before 6 of May 2021, the employer was entitled to check on his/ her employee even on-site visits to the declared working place. Considering the law amendment, it is harder now for the employer to be sure that the employee is working from Romania or from abroad.
It is also important to make a distinction and to point out that in Romania there are two different kinds of remote working and teleworking – regulated by Law 81/2018 and working from home regulated by RLLC respectively. Even though they seem to be the same, there are two different sets of law provisions. The teleworking activity is defined as being a work type where the employee regularly and voluntarily complies with the specific working assignments, in a different place than the organized working place of the employer, using information and communication technologies, while working from home is regulated by article 108 – 110 of RLLC and refers to the activity that is performed from home (residence) and not from another place. Usually, home working is used for activities that are not related to computers but there are no restrictions in the law therefore home working may also be used as an alternative for teleworking since in teleworking the employer may not find out if his/ her employee is working from Romania or not. On the other hand, when an employee is working from home under RLLC, he/ she is entitled to determine his/hers own working time schedule while in teleworking the working time schedule must be determined from the beginning of the IEC. In both cases, the employer is entitled to check on his/ her employee, under the conditions agreed in the IEC, during all working times in teleworking, while only in the agreed time schedule in case of home working. Resultingly, when the employer considers for his/her employees remote work outside Romania, only teleworking is applicable and not home working.
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