REMOTE WORK
Legal Foundations, Legislative Framework, and Contractual Elements
Attorney & Mediator Fatih Mehmet TERCAN
info@tercanhukuk.com | 0532 511 84 02
1. INTRODUCTION
1.1. Definition and Scope of Remote Work
Remote work is a working model based on the principle that the employee performs their work obligation outside the workplace, at home, or via technological communication tools, within the scope of the work organization created by the employer. In this model, the employee performs their duties without being physically present at the workplace; communication with the employer is maintained through various digital tools, primarily the internet, email, and video conferencing applications.
Article 14 of the Labor Law No. 4857 defines remote work as: "an employment relationship established in writing, based on the principle that the employee performs their work obligation at home or outside the workplace via technological communication tools, within the scope of the work organization created by the employer." This definition draws a broad framework covering both individual and corporate dimensions of remote work and forms the basis of its legal protection.
1.2. Historical Development: Pre- and Post-Pandemic
The concept of remote work was first regulated in Turkish law in 2016 through an amendment made to the Labor Law No. 4857. However, its prevalence in practice remained quite limited during this period; it was not widely adopted outside of the information technology, software, and media sectors. The real momentum for remote work in Turkey came with the COVID-19 pandemic that broke out in March 2020.
During the pandemic, millions of workers were transitioned to remote work without a fully established legal infrastructure, and mostly by the unilateral decision of the employer. To address the legal gaps that arose during this period, the Remote Work Regulation was prepared and entered into force upon its publication in the Official Gazette on March 10, 2021. This regulation undertook a critical function in terms of establishing a rule-based framework for practices experienced during the pandemic and balancing the rights of employees and employers.
1.3. The Transformation of Remote Work in Turkey
In the post-pandemic period, remote work ceased to be a temporary necessity and transformed into a permanent way of working. According to TURKSTAT (TÜİK) data, the proportion of remote workers in Turkey in 2020 increased approximately 10-fold compared to previous years. This transformation created a need for rapid updates in legal regulations, making remote working conditions a subject of negotiation before employee and employer organizations.
Today, remote work is implemented in different forms, such as hybrid models, full-time work-from-home, and the platform economy. Each model has its own unique legal requirements, leading to different consequences in terms of the content of the employment contract, social security notifications, and occupational health and safety obligations. Therefore, understanding the legal framework accurately is of great importance for both the employee and the employer.
2. LEGAL BASIS AND LEGISLATIVE FRAMEWORK
2.1. Article 14 of the Labor Law No. 4857
The primary legal basis for remote work is Article 14 of the Labor Law No. 4857. This article was reorganized by Law No. 6715 in 2016; thus, remote work was defined legally for the first time and integrated into labor legislation. According to this regulation, a remote work relationship must be based on a written contract. The contract must include provisions regarding:
The definition of the work
The manner in which the work is performed
The duration and location of the work
Matters concerning wages and payment of wages
Equipment provided by the employer and the obligations regarding their protection
The principles of communication between the employer and the employee
General and special working conditions
Article 14 of the Labor Law also regulates overtime work in remote working. Accordingly, the rules regarding the weekly working limit of 45 hours and overtime pay apply exactly to remote workers as well. In its decisions on this matter, the Supreme Court has emphasized that proving the overtime claims of a remote worker requires reliance on more concrete and written evidence compared to employees working at the physical workplace.
2.2. The Entry into Force of the Remote Work Regulation Dated 10.03.2021
Prepared on the basis of Article 14 of the Labor Law No. 4857, the Remote Work Regulation was published in the Official Gazette dated March 10, 2021, and numbered 31419, thereby entering into force. The Regulation comprehensively governs the procedures and principles of remote work, the content of the contract, the obligations of the employer, provisions on occupational health and safety, and data security measures.
The Regulation consists of a total of four main sections and seventeen articles. The first section covers the purpose, scope, legal basis, and definitions; the second section regulates the principles for establishing a remote work relationship. The third section addresses obligations regarding occupational health and safety and data security, while the fourth section includes miscellaneous and final provisions.
With the introduction of the Regulation, remote work relationships established verbally or via email during the pandemic were placed on a legal footing. It has now become mandatory to execute the remote work contract in writing, and the minimum elements that this contract must contain have been explicitly reflected in the legislation.
2.3. Relationship with KVKK and Social Security (SGK) Legislation
Remote work does not only concern labor law legislation; it also directly relates to the Personal Data Protection Law No. 6698 (KVKK) and social security legislation. When evaluated in terms of KVKK, both the personal data of the remote worker and the commercial secrets of the employer are protected during the activities carried out by the employee in the digital environment.
Pursuant to Article 9 of the Remote Work Regulation, the employer is obliged to explicitly notify the remote worker of the work tools, software, and hardware provided, as well as the data security measures. The employee is responsible for using the employer's information, documents, and customer data solely for work purposes and not sharing them with unauthorized persons. The data security obligations within the scope of Article 12 of the KVKK create an additional layer of responsibility for the employer.
In terms of SGK (Social Security Institution) legislation, remote workers are deemed insured within the scope of the Social Insurance and General Health Insurance Law No. 5510. No differentiation is envisaged regarding the employer's insurance premium declarations, employment documents, and occupational accident notifications. However, in the event that an occupational accident occurs in a remote work environment, specific difficulties regarding the burden of proof may arise.
2.4. Purpose and Scope of Application of the Regulation
According to the purpose specified in the first article of the Remote Work Regulation, the regulation entered into force to govern the procedures and principles of remote work, safeguard the rights of remote workers, and ensure uniformity in practice.
The Regulation covers employees and employers within the scope of Law No. 4857, while generally excluding public sector employees. Nevertheless, some public institutions have chosen to separately regulate remote work through their internal legislation. The scope of application of the Regulation covers all employees who work under an employment contract and can perform their work outside the workplace using technological tools.
It is important to note that the regulation also governs how the transition to remote work is carried out. Accordingly, transitioning to a remote work model by the unilateral will of the employer is characterized as a fundamental change in working conditions under Article 22 of Law No. 4857, which makes it mandatory to obtain the written consent of the employee.
3. ELEMENTS OF THE REMOTE WORK CONTRACT
3.1. Written Contract Requirement
Pursuant to Article 5 of the Remote Work Regulation and Article 14 of the Labor Law No. 4857, it is mandatory to conclude the remote work contract in writing. This is not a condition for validity but rather a condition for proof. However, in practice, if a written contract is not executed, it becomes difficult to characterize the relationship between the parties as a remote work relationship, which may lead to legal consequences to the detriment of the employee.
The written contract requirement applies both at the beginning of the remote work relationship and at the stage of converting an existing employment contract into a remote working arrangement. Contracts drawn up in electronic format produce equivalent legal consequences to written contracts, provided they are signed with a secure electronic signature under the Electronic Signature Law No. 5070.
3.2. Minimum Elements Required in the Contract
Article 5 of the Remote Work Regulation explicitly determines the minimum elements that must be present in the contract. These elements are as follows:
Definition of the work: The duties and responsibilities to be carried out by the employee under the remote work arrangement must be clearly defined.
Manner of performance: How the duty will be performed, using which methods and digital tools, must be specified.
Duration and location: Whether the work is envisaged permanently or for specific periods, and the location where the work will be performed (home, remote office, etc.) must be included in the contract.
Wages and payment terms: The monthly wage amount, payment date, and any performance-based additional payments must be explicitly regulated.
Equipment provided by the employer: It must be stated who will provide tools such as computers, internet connections, and software licenses, and how the costs will be covered.
Communication tools and method: The communication channels between the employee and the employer (email, corporate messaging applications, etc.) must be reflected in the contract.
Working hours: Clear determination of daily and weekly working hours is of great importance, especially in preventing overtime disputes.
Supreme Court jurisprudence highlights overtime disputes that arise particularly when working hours are not written into the contract. According to the settled decisions of the 9th Civil Chamber of the Supreme Court, due to the weakening of the employer's supervision and control in remote work, witness statements alone are not considered sufficient to prove overtime; digital records are taken as the basis instead.
3.3. Converting Existing Employment Contracts into Remote Work
Transitioning an employee who is currently working at the physical workplace to remote work requires a fundamental change to the existing employment contract. Pursuant to Article 22 of Law No. 4857, the employer must notify the employee of the change in working conditions in writing, explain the justification for the change, and obtain the employee's written approval within six business days. If the employee does not give approval within this period, the proposal for change is deemed invalid, and the employer can only terminate the employment contract by relying on a valid reason.
In practice, employers occasionally argue that remote work was adopted without the employee's consent due to force majeure, as was the case during the pandemic. The Supreme Court, adopting a cautious stance on this matter, has emphasized that force majeure alone is not a sufficient justification for a forced transition to remote work, and that the modification of the employment contract must in any case be carried out in accordance with the legal procedure.
3.4. Contractual Rights and Obligations of the Parties
Under a remote work contract, the primary obligations of the employer can be listed as follows: Providing the necessary equipment and software for the employee to perform their duties; taking occupational health and safety measures; supervising compliance with working hours; paying wages on time and in full; and protecting the employee's personal data.
In terms of the employee's obligations, these include: Complying with the determined working hours, carrying out the employer's instructions, using work tools with care, protecting the employer's trade secrets and personal data, and establishing the remote work environment in a manner that meets occupational health and safety standards.
According to the Regulation, it is essential that the materials and work tools necessary for the production of goods and services are provided by the employer unless otherwise agreed in the contract. The conditions of use of these tools, maintenance and repair obligations, and who will cover the associated costs must be explicitly regulated in the contract. Failing to reflect these matters in the contract can lay the groundwork for serious disputes during the implementation stage.
4. CONCLUSION
Remote work has ceased to be an extraordinary model in Turkish labor law; it has turned into an established form of working in terms of both legislation and judicial jurisprudence. Article 14 of the Labor Law No. 4857 and the Remote Work Regulation of 2021 form the fundamental legal framework of this field. These regulations comprehensively address working conditions, contract content, employer obligations, and data security.
When Supreme Court decisions are analyzed, it is seen that executing a written contract, clearly defining working hours, and meticulously preserving digital records are of decisive importance in potential disputes for both the employee and the employer. Therefore, it is recommended to fully satisfy the legislative requirements when establishing a remote work relationship.
In the continuation of this series, the employer's obligations, the employee's rights, occupational health and safety, and the legal problems encountered in practice will be addressed in separate articles.
BIBLIOGRAPHY
Labor Law No. 4857, Art. 14 (Remote Work), Official Gazette dated 22.05.2003 and numbered 25134.
Remote Work Regulation, Official Gazette dated 10.03.2021 and numbered 31419.
Personal Data Protection Law No. 6698 (KVKK), Official Gazette dated 07.04.2016 and numbered 29677.
Social Insurance and General Health Insurance Law No. 5510.
You can contact us for your questions regarding this article or your requests for legal consultancy on remote work law.
Atty. Med. Fatih Mehmet TERCANAttorney & Mediator ✉ info@tercanhukuk.com | ☎ 0532 511 84 02