Worktime: To Each His or Her Own

FLEXIBILITY OF TIME AND SPACE: THUS SMART WORK (MORE THAN MERE TELECOMMUTING) WILL CHANGE THE CULTURE OF WORK AND THE ORGANIZATION OF LIFE. EUROPE IS DOING IT ALREADY. ITALY IS STARTING NOW, WITH THE GOVERNMENT DECREE ON LEAN LABOR

by Maurizio Del Conte, Dept. of Law, Bocconi
Translated by Alex Foti

Dependent employment is changing skin, so that the workplace is no longer inextricably linked to the physical location of a company. Information technology makes cheap and cost-effective to organize the work performance remotely. When the organization of work goes beyond the traditional boundaries of place, it is referred to as “smart work”. It is clear that, at least at the current technology level, not all the work can be done remotely, and that the potential for smart work is mainly concentrated in clerical tasks.

There are now several companies that have started experimenting with smart work. Its benefits are well-known: greater employee satisfaction, thanks to a better balance between work and family duties, by suppressing or reducing commuting time to and from work; reduced absenteeism; increase in productivity per hour worked; reduction in energy, real estate and maintenance costs. But these benefits also extend to the larger community, thanks to improvements in traffic and pollution, and a reduction in the cost of public welfare, as households have more time to care for children and the elderly.

Yet, despite the potentially large benefits brought by innovative work methods, so far its spread has been relatively modest. The problem, to hear companies and trade unions, mainly lies in the absence of a regulatory framework. In fact, the only Italian norm applying to work performed remotely is the unions and employers’ agreement of 9 June 2004, which implemented the European framework agreement on telework of 16 July 2002. But, while in other European countries like the UK, the Netherlands and Scandinavian countries, telework has rapidly evolved thanks to organizational models that are flexible and easily adaptable to different employment positions, in Italy the process has been weighed down by a number of constraints that make it viable only in a narrow range of activities, generally of low professional value, such as call center work.

The recent legal shift to lavoro agile (literally, lean work) is motivated by the need to go beyond the model of telecommuting meant as a mere reproduction of the office workplace in a home environment. In other words, remote work needs to be developed in a manner different from ordinary employment. Consequently, companies should be free to organize and evaluate the performance of their employees according to innovative smart working models, as long as they remain in compliance with the fundamental principles of labor law.

For this reason, the government recently presented a decree enshrining a few binding principles, in order to address the concerns and doubts that have so far emerged, especially in relation to legal treatment, salary compensation, and insurance coverage of employees against labor injuries.

The new norm puts forward a definition of smart work as dependent employment executed under flexible forms, so as to increase productivity and facilitate the attainment of a good work-life balance. It is thus not an additional type of labor contract, but more simply a way to organize work that is characterized by: 

a) the execution of job tasks in part within the firm’s premises and partly outside, the only limit being set by a ceiling on the duration of the workday and workweek, as set by the law and collective bargaining;

b) the use of digital technology in the work being performed;

c) the absence of a fixed employment location during the hours or days of work done outside the company premises.

A smart work agreement can be freely entered by the employer and the employee at any time during the labor contract. The parties can also always choose to revert to ordinary employment practices.

The law foresees the right to equal pay and working conditions, compliance with labor provisions on the right to breaks and paid vacation, the right to workplace safety and public insurance against occupational hazards affecting labor supplied outside the company gates. The latter provision was particularly invoked by Italian companies, since today, for fear of being uncovered in case of an injury to one of their employees, firms often buy additional private insurance, thus doubling their labor insurance costs.

Finally, it should be noted that collective bargaining introducing flexible forms of work is to be encouraged by the new fiscal provisions that give tax breaks for capital-labor agreements that increase firm-level productivity.

With the decree on smart work, dependent employment finally enters the modern age in Italy, too. It is the logical follow-up of the Italian Jobs Act, which put tremendous emphasis on making dependent employment the default choice by firms, by making it more affordable for firms to hire their employees permanently. This reflects the persuasion that digital technology, far from being a threat to employment, may instead improve working conditions and increase participation rates in the labor force.