The Legal Status of Remote and Flexible Working Models in Labor Law

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1. Introduction

Remote and flexible work models , which rapidly entered our lives with the pandemic , have now become a permanent rather than a temporary form of employment. This new order, shaped by technology, questions the classic "physical presence at the workplace" requirement and necessitates new interpretations in Labor Law .

In Turkish law, remote work is regulated by Article 14 of the Labor Law No. 4857 and the Remote Work Regulation dated March 10, 2021. These models have raised new questions in areas such as the employer's right to supervise, employee health and safety, leave, overtime, and wages.

This article the legal nature of remote and flexible work, the employer's responsibilities, the determination of working hours, the regulation of leave rights , and the current precedents of the Supreme Court of Turkey .

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2. Legal Basis and Conceptual Framework

2.1. Legal Basis

The concept of remote work is explicitly regulated in Article 14/4 of the Labor Law No. 4857 :

"Remote work is an employment relationship based on the principle that the employee performs their work at home or outside the workplace using technological communication tools, within the work organization established by the employer."

The regulation details the conditions for remote work , contract terms , and occupational health and safety measures

2.2. The Concept of Flexible Working

Flexible working is a general term for alternative work models permitted by law that allow for variation in working hours, location, or format.
These include:

• Part-time work (Article 13 of Law No. 4857),

• Work upon request (Article 14/6 of Law No. 4857),

• Seasonal or project-based work,

• Remote work is included.

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3. Elements of a Remote Work Agreement

3.1. Written Conditions

According to Article 5 of the regulation, the remote work arrangement in writing .
The contract must include:

• Job description,

• Fee and payment method,

• Working hours,

• Communication methods,

• Equipment usage,

• Data security
  must be included.

In its decision numbered 2022/7625 E., 2023/1126 K., the 9th Civil Chamber of the Supreme Court of Appeals stated that "the absence of a written contract between the parties in remote work creates an easier basis for presenting evidence against the employer."

3.2. Employer's Right to Supervise

Employers may monitor remote employees; however, this monitoring cannot violate the right to privacy (Article 20 of the Constitution).
In this context, monitoring an employee's email, camera, or software must comply with the principle of proportionality.

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4. Working Hours and Overtime

4.1. Principles

According to Article 63 of Law No. 4857, the maximum weekly working time is 45 hours . This rule also applies to remote work. However, the flexible model allows the parties to make different distributions, provided that the total weekly working hours do not exceed 45 hours

For example, a schedule of four 10-hour days a week with one day off is possible.

4.2. Overtime

Overtime work in remote employment is possible with the employee's instruction or actual consent of the employer . Supreme Court 22nd Civil Chamber, Case No. 2021/543, Decision No. 2022/811.

"A claim of overtime by an employee working from home is unacceptable unless proven by explicit instructions from the employer or technical surveillance records."

This decision underscores the importance of employers' digital record-keeping obligations.

4.3. Right to Disconnect

The right of an employee to be unreachable outside of working hours is a topic of discussion in Turkish law, as it is in European Union law.
Although the Supreme Court has not yet developed clear case law on this matter, excessive message/call loads can be considered "worsening of working conditions" under Article 24/2-f of the Labor Law.

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5. Occupational Health and Safety (OHS) Responsibilities

5.1. Employer's Obligations

No. 6331 on Occupational Health and Safety , employers are obliged to provide safe working conditions for remote workers as well.
Accordingly:

• Ensuring the safety of the equipment,

• To conduct a risk assessment,

• Providing training to employees,

• Reporting workplace accidents is mandatory.

In its decision numbered 2022/2396 E., 2023/459 K., the 10th Civil Chamber of the Supreme Court of Appeals that injuries resulting from electric shock while working from home constitute an occupational accident .
This precedent has expanded the employer's responsibility to include injuries "outside the workplace."

5.2. Employee's Responsibilities

Employees are also obligated to comply with the employer's instructions, maintain equipment, and report risks (Occupational Safety and Health Law, Article 19).

5.3. Compulsory Insurance and Notification

Remote workers are fully insured under the Social Security Institution. Workplace accident reports must be submitted within 3 working days , just as in traditional employment arrangements .

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6. Leave Entitlements and Remuneration

6.1. Annual Paid Leave

Remote workers are entitled to annual leave in accordance with Article 53 of Law No. 4857. This leave can be taken digitally upon written request. Supreme Court 9th Civil Chamber, 2020/11212 K.:

"Remote employees can submit their annual leave requests electronically, thus fulfilling the requirement for written requests."

6.2. Wage and Equipment Expenses

According to Article 7 of the regulation, the employer must cover the costs of tools and equipment used by the employee for work.
These include computer, internet, and telephone expenses.
However, the extent to which these expenses are covered must be determined by contract.

In its decision numbered 2023/178 K., the 22nd Civil Chamber of the Supreme Court of Appeals ruled that the employer's responsibility for internet expenses in remote work was accepted on the grounds that "internet expenses are necessary for the performance of the work.".

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7. Legal Issues in Flexible Working Models

7.1. Time Tracking

The biggest problem in flexible work models determining working hours.
According to Supreme Court rulings, the employer's system records, email timestamps, and digital log data constitute evidence in this regard.

7.2. Detection of Work Accidents

In accidents occurring at home or elsewhere, the "connection of the accident to the performance of work" is sought.
As in the example of the Supreme Court's 10th Civil Chamber, case number 2022/2396, an "incident occurring during working hours while using work equipment" is considered a work accident.
However, accidents at home (e.g., falls, burns while cooking) do not fall within this scope.

7.3. Work Discipline and Confidentiality

Remote work increases the risk of data security breaches.
Employees are responsible for protecting confidential employer documents or customer data.
In case of breach, the Personal Data Protection Law No. 6698 and Article 25/II-e of Law No. 4857 (violation of moral and good faith principles) apply.

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8. Contemporary Approaches with Supreme Court Decisions

8.1. Supreme Court 9th Civil Chamber, Case No. 2022/1126.

"In remote work, proof of overtime is possible with technical evidence. The employer has an obligation to keep records."

8.2. Supreme Court 22nd Civil Chamber, Case No. 2023/178.

"Internet and communication expenses incurred during remote work should be covered by the employer, as they are directly related to the performance of the work."

8.3. Supreme Court 10th Civil Chamber, Case No. 2023/459.

"Electric shock injuries sustained in the home are considered work-related accidents because they are connected to the course of work."

These precedents demonstrate that remote work is no longer an exception but an established practice in labor law

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9th International Comparison

9.1. European Union

The European Union's Telework Agreement No. 2002/2042 states that remote workers have equal rights .
Furthermore, the "right to disconnect" is regulated under EU law.

9.2. Türkiye

Although Turkish law is approaching EU standards, it still needs clear legal regulations in areas such as the right to inaccessibility, remote work performance measurement, and data privacy.

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10. Fairness, Balance, and a Look to the Future

While remote and flexible work models offer advantages in terms of productivity, they can threaten an employee's job security and life balance . For the sake of fairness:

• Employers must protect employees' working hours and right to rest

• Employees must adhere to work discipline and confidentiality.

The Supreme Court's approach in recent years has been to ensure that "flexibility is not abused and that workers' rights are protected."
Thus, the classic principle of balance (interpretation in favor of the worker) continues in labor law.

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11. Conclusion and Evaluation

Remote and flexible working models are enduring elements of the new era in which technology is transforming the law.
However, this transformation can only be sustainable if the worker's working hours, wages, leave, and occupational health and safety , are protected.

In conclusion:

• Remote work has been given a legal framework by Law No. 4857, Article 14, and its related regulations.

• Overtime is possible with the explicit consent of the employer.

• Accidents that occur while working from home can be considered workplace accidents.

• Equipment costs are the responsibility of the employer.

• Leave and pay rights are the same as for regular workers.

• Supreme Court precedents show that this model has become permanent in the labor law system.