LEGAL ISSUES IN THE PRACTICE OF REMOTE WORK
Practical Disputes, Supreme Court Decisions, and Solutions
Series: 4 / 4
Labor Law & Remote Work Attorney & Mediator
Fatih Mehmet TERCAN
info@tercanhukuk.com | 0532 511 84 02
1. INTRODUCTION
The widespread adoption of remote work and the recent implementation of legislation in practice bring many unresolved issues to the agenda. The number of cases brought before labor courts is increasing every year, and the Supreme Court continues to shape this new working model through jurisprudence. In this final article, the most frequently encountered legal issues in the practice of remote work, the Supreme Court decisions regarding these issues, and practical solution proposals for the parties are comprehensively discussed.
2. THE PROBLEM OF OVERTIME AND PROVING WORKING HOURS
2.1. Source of the Problem Due to the nature of remote work, it is not possible for the employer to keep the employee under direct supervision. This situation; makes it difficult to determine working hours and prove overtime. While the employee claims to have worked overtime, the employer cannot exactly supervise how long they have worked. In traditional work environments, timesheets, entry-exit cards, and witness statements are the classic tools used to prove overtime. However, these methods are often insufficient in remote work.
2.2. The Supreme Court's Stance: The Requirement of Digital Evidence The Supreme Court does not consider mere witness statements sufficient to prove overtime in remote work; it requires reliance on concrete digital evidence. Accepted types of evidence in this context are:
System login-logout log records (VPN connection durations, application access logs)
Emails sent outside of working hours and instant messaging transcripts
Task assignment and completion timestamps on project management platforms
Video conference and online meeting attendance records
Written instructions sent by the employer and the responses given to these instructions
3. THE PROBLEM OF UNILATERAL TRANSITION TO REMOTE WORK
One of the most common problems encountered in practice is the employer switching to a remote work model unilaterally without the employee's consent. This situation constitutes a fundamental change in working conditions within the scope of Article 22 of the Labor Law No. 4857 and brings along the obligation to fulfill legal requirements. The employer citing force majeure reasons such as a pandemic or crisis does not automatically invalidate this procedure either. The Supreme Court interprets the claim of force majeure narrowly, evaluates the conditions of each concrete case separately, and meticulously examines whether the employee's consent has been obtained.
4. THE PROBLEM OF OCCUPATIONAL ACCIDENTS AND LIABILITY
Determining when an occupational accident occurs in remote work is a subject of serious debate. The regulation does not contain a detailed provision on this issue; the conditions specific to the incident are decisive. The conditions required for an accident to be considered an occupational accident are as follows:
The accident occurring within the working hours specified in the contract.
The accident occurring at the workplace specified in the contract.
An appropriate causal link existing between the accident and the act of working.
The main problem in practice is determining whether an accident occurring in the home environment is an occupational accident or a daily accident. The Supreme Court evaluates this issue on a case-by-case basis and accepts the causal link as the decisive criterion.
5. DATA SECURITY BREACHES AND LIABILITY
The use of personal devices and home networks by remote workers significantly increases corporate data security risks. This situation can lay the groundwork for various legal issues for both the employer and the employee. The most frequently encountered problems on the employer's side are: linking the source of data breaches to the employee's computer and related compensation disputes; the disclosure of trade secrets to third parties by the employee; and administrative investigations conducted against the employer under the KVKK (Personal Data Protection Law). On the employee's side, remote monitoring by the employer outside of working hours, interference with the private living space, and the processing of personal data without consent are among the most common topics of complaint.
6. LACK OF THE RIGHT TO DISCONNECT
Although not yet regulated in Turkish law, the 'right to disconnect', which has been included in the legislation in France, Belgium, and the Netherlands; expresses the employee's right not to respond to work communications received outside of working hours. While there is no legal basis for this right in Turkey, this is one of the most fundamental problems arising in practice. In the current law, the employee can base their non-response to requests sent outside of working hours on a contract provision or a justified reason for termination. However, this area is a matter where sufficient jurisprudence has not yet been formed, and legal regulation is expected in the near future.
7. THE PROBLEM OF WITHHOLDING OR DELAYING THE DECISION ON REMOTE WORK
Many employers reject remote work requests or suspend the decision for an indefinite period. This behavior; can be evaluated within the scope of the prohibition of discrimination, especially regarding pandemic period practices and requests concerning female workers in the breastfeeding period. The Supreme Court and regional courts of justice are increasingly making it clear in such cases that the burden of basing the rejection on a justified reason lies with the employer and that a rejection made without showing a concrete reason may violate the principle of equal treatment.
8. GENERAL EVALUATION AND RECOMMENDATIONS
Legal problems in the practice of remote work stem from gaps in the legislation, inadequately prepared contracts, and judicial jurisprudence that has not yet matured. To prevent these problems, it is recommended to take the following measures:
For employers: Preparing remote work contracts comprehensively, in detail, and in accordance with the legislation; establishing and regularly operating digital recording systems; making occupational health and safety and data security protocols written.
For employees: Documenting and archiving working hours and the work produced in writing; obtaining an opinion from a legal counsel before signing a contract; immediately requesting legal support in case of discrimination or rights violations.
In terms of judiciary and legislation: Recognizing the 'right to disconnect'; making a special legislative regulation regarding the determination of an occupational accident in a remote work environment; introducing restrictive rules regarding the rejection of requests to access remote work.
As a result, remote work law continues its development in terms of both legislation and judicial jurisprudence. It is of great importance for the parties to closely follow current legal developments and benefit from professional legal consultancy services in order to effectively protect their rights. With this article, our remote work series is completed, and you can contact Atty. Med. Fatih Mehmet TERCAN for all your questions.
BIBLIOGRAPHY
Labor Law No. 4857, art. 14, 22, 41, 63.
Remote Work Regulation, 10.03.2021.
Personal Data Protection Law No. 6698.
KVKK Personal Data Protection Authority, Remote Work and Data Security Guide.
For your questions regarding this article or your requests for legal consultancy on remote work law, you can contact us.
Atty. Med. Fatih Mehmet TERCAN
Attorney & Mediator
info@tercanhukuk.com | 0532 511 84 02