With the Covid-19 pandemic took its place in our daily lives with a rapid and striking effect, some working models that we are accustomed to have undergone inevitable changes. In line with the necessity of minimizing the crowded environments where the pandemic can rapidly spread, many local and global companies have switched to the hybrid or full-time remote working model and many services have offered in digital and contactless formats, as far as possible. Even these days when the effect of the pandemic has highly decreased, the practices of the remote working model, which have been adopted as a precaution, is preferred as a permanent working model for more and more companies everyday thanks to its advantages.
One of the most important advantages provided to the employee by the remote working model is that it allows the employee to continue his work in the comfort of his home or in another place that the employee prefers, and it eliminates the loss of time spent while transportation to the workplace, especially in metropolitan cities. However, in some cases, the remote working model can go beyond a meaning where minor flexibility can be experienced during working hours, and it starts to constantly occupy the personal time of the employee outside of his working hours. In this article, we will discuss how the overtime pay receivable, which is one of the labor receivables that can be subject to a possible lawsuit, will arise in the remote working model and the issue of proving this overtime work.
The working and resting periods regulated in the Labor Law are also valid for the remote employees.
When the "Remote Working Regulation" and the 14th article of the Labor Law No. 4857 are examined; it will be seen that there is no obvious difference in terms of basic working conditions between the employee working remotely and the employee working at the workplace in terms of rights and receivables. The wage, premium, bonus and leave rights of the employee working in the remote work model are preserved in the same way and the working and resting periods regulated in the Labor Law are also valid for the employees working remotely.
In addition, in the 6th paragraph of the 14th article of the Labor Law, it is stated that "unless there is a fundamental reason, employees in remote work cannot be subjected to different treatment compared to the comparable employee, purely because of the nature of the employment contract." and this way, the employer's obligation of equal treatment is underlined. According to this law, if the employer does not comply with the rights of the employees working remotely and subjects them to a different procedure, it means that the employer violates the obligation of equal treatment. In this context, the right of the employee to terminate his employment contract with just cause will come to the fore.
Considering the legal limits stipulated in the legislation in terms of working hours, the following will be seen; the weekly working time is a maximum of 45 hours. The work exceeding the weekly working time of 45 hours will be counted as overtime, therefore the employee is entitled to an overtime pay. The weekly working time of 45 hours is divided equally by the working days of the week unless otherwise agreed. In no circumstances daily working time cannot exceed 11 hours a day and the employee's consent are sought for overtime work.
It is useful to refer to the "Remote Working Regulation", in which the remote working model is regulated in more detail. Pursuant to Article 9 of the Regulation it is stated that the time interval and duration of remote working must be specified in the employment contract. At the same time, it is regulated in the relevant article that changes in working hours can be made by the parties only on the condition that the limitations stipulated in the legislation and briefly stated above are complied with. In the same article, it is stated that the overtime work to be done by the employee will be done upon the written request of the employer and with the acceptance of the employee in accordance with the provisions of the legislation.
Thus, the employer must also comply with all these legal limits for the employees working remotely. In case of overtime work exceeding the specified periods, the employee will be entitled to receive overtime pay.
The employee who claims that he worked overtime is obligated to prove his claim.
Employees who are subject to the remote working model, where working hours can be determined flexibly, frequently complain about the endless working hours and thus the situation of mixing of their personal life and working life. However, in such a working model, considering the employee is not under the supervision of the employer, it may be necessary to use different kinds of proofs compared to the overtime work from the workplace in order to prove the “actual” working time and therefore the claimed overtime work.
First of all, it should be underlined that the party who is obliged to prove the duration of overtime is the employee who claims to work overtime while the party who is obliged to prove that overtime wage have been paid is the employer.
In Supreme Court decisions regarding the proof of overtime work in terms of "working from the workplace”; it is considered that workplace records and especially documents showing entry and exit to the workplace as evidence. Also, it is stated that if overtime work cannot be proven with written documents, the statements of witnesses who have actually worked in the same workplace with the employee can be taken into account. In addition, the Supreme Court finds it important to investigate whether there is overtime work according to the nature and intensity of the work carried out by the employee.
In this context, in the remote work model, it is a fact that the kinds of evidence that the employee can put forward to prove the overtime work have significantly decreased. Within the scope of the "remote working model", due to the fact that this working method has just started to become widespread, the practice and the evidence useful for proof will become clear as specific Supreme Court decisions regarding proof of overtime work in remote work model come up.
For this reason, it can be said that in order to prove overtime in the remote work model, the courts may seek for different evidence from those presented for the cases regarding working at the workplace.
As exemplary, the following points can be taken into consideration by the court in terms of proof;
- E-mail correspondence containing the employer's instructions and the employee's reply is of great importance in detecting overtime work.
- It is possible to make an inference about overtime work by considering the online and offline hours of the employee where the work is carried out with online programs.
- The working hours of another employee who works in the same workplace and in the same quality may be taken as a precedent and it may be evaluated accordingly whether overtime is worked or not.
- If any, working hours reported by the employee and shared with the employer or technological opportunities such as recording internet activity, screenshots, and using cameras on the employee's devices may also be taken into account by the court.
In recent years, with the remote work model which has started to be applied more widely by companies especially after the impact of the Covid-19 pandemic, it has been seen that the demands for overtime pay requested by the employees are about to be often on the agenda.
In this context, it should noted that the employees are obliged to prove their claims that they worked overtime. The periods of overtime work carried out without the supervision and control of the employer must be proven by the employee. It can be said that in the upcoming period, information and documents to be obtained with the help of technological opportunities will be frequently evaluated in order to prove the overtime work during the remote work period. The courts will be able to interpret the evidence more broadly, considering the principle of "interpretation in favor of the employee" since the kinds of evidence of the employee are more limited.