The future of work and its regulatory challenges

This week I read an excellent article by Caroline Castrillon arguing that remote and hybrid work were the beginning of a new way of working, and that they are now evolving into other trends or arrangements such as “microshifting” and polyemployment.

Microshifting proposes breaking the workday into short, flexible blocks, so that work adapts to life, and not the other way around. Instead of working eight straight hours on a pre-set schedule, it envisions that employees decide for themselves when and where to perform the contracted work. Of course, this arrangement does not suit every job that exists today; it applies mainly to knowledge workers and the services sector.

Microshifting starts from the premise that the traditional nine-to-five model was created for the industrial era, designed for factories whose productivity was measured in hours and units produced. Paradoxically, we must accept that many manufacturing companies today still require longer, continuous shifts. For them, other solutions will be needed.

Polyemployment refers to an employee holding more than one job at the same time, without this amounting to job abandonment or, in itself, an act of unfair competition. Under this arrangement, a worker may carry out two or more jobs in the same day, provided this does not affect compliance with their contractual obligations regarding the protection of sensitive and confidential information that could harm their employers' legitimate interests.

The article cites Owl Labs' State of Hybrid Work 2025 report, which finds that 9% of knowledge workers would be willing to give up part of their salary in exchange for more flexible work arrangements, and 8% would do so for a four-day work week.

These figures confirm a clear trend: flexibility has become as valuable as pay, redefining what people consider a “good job offer”. Today, emotional salary and autonomy weigh as much as monetary salary, with an added advantage: they are tax-free.

There is no hiding from it. The world is changing, and new ways and arrangements of working will keep emerging. At the start of this decade, working from home was uncommon, and in some companies or jurisdictions it was seen as a limited perk for high performers. In less than five years it not only became the prevailing arrangement worldwide but, as described above, is giving rise to a wide range of other arrangements seeking to become mainstream, driven mainly by people's wish to enjoy life and live in a more balanced way.

Here it is worth returning to an idea we have been discussing since 2022: the candidate's market, in which younger generations have disruptively led many organizations to adjust their work and compensation models in order to hire the workforce they need to achieve their business purpose. In my view, this shift was inspired by what I have previously called the uberization of services, a social disruption that is still being studied, debated and evolving.

The rise of these new arrangements and ways of organizing work must be taken into account by lawmakers and policymakers, because the current labor framework has many limitations that hinder their proper implementation. Issues such as overtime pay, job abandonment, unfair competition and the scope of the employer's supervisory authority, all expressions of subordination, among others, are significant obstacles.

Without legislative reform, these arrangements could expose employers to claims based on rules designed for the productive context of the last century, far removed from today's technological and social reality of work.

As I write this article, I recall that Costa Rica's telework law refers to flexibility, simply stating that teleworkers may have a flexible arrangement. However, our legislation says nothing about the scope or definition of that flexibility, leaving it dangerously open to interpretation, and we must remember that, under the current understanding of labor law, the pro-worker principle will always prevail.

This lack of definition creates legal uncertainty for both parties, and the financial risk that this uncertainty poses for employers results in little or no interest in implementing flexible arrangements. The lack of legislative clarity places an enormous responsibility on labor judges, who must understand the social moment of a given era in order to interpret and define the scope of flexibility. But as long as it remains a matter of interpretation, a high degree of legal uncertainty will persist, and that uncertainty remains the main constraint on flexible work arrangements.

Interestingly, as I write, I see that one foundation of this flexibility is precisely the absence of control or, better said, a change in who holds control. In this arrangement, control lies with the employee, who decides when, how much and where to work, while the employer simply receives the contracted service and ensures it meets the agreed quality. Without direct and immediate supervision, the employer's control over the person providing the service is limited. In other words, flexibility implies an absence or limitation of the employer's control.

It is impossible not to notice how this way of seeing flexibility resembles two legal constructs that labor law has sought to regulate for years in order to prevent abuse by employers: employees in positions of trust and independent professional services.

Employees in positions of trust are, in short, those who can do their work without direct or immediate supervision and are not required to keep a specific schedule, being free to set their own start and finish times. They may work up to 12 hours a day without being paid overtime, and may even perform their work outside the company's premises.

Professional services, for their part, are services purchased from a third party, who must deliver them within a given time and to an agreed or expected standard of quality, with little involvement or control by the buyer.

For many years both constructs have been litigated precisely because employers used them and courts examined them as a possible misuse of the law to the detriment of workers. Yet the premise of freedom underlying flexibility is, in my view, closely related to these constructs, since in both the employer's or service recipient's control is reduced. The same is true of many of today's platform-based arrangements, which offer broad flexibility that always depends on the will of the service provider and their freedom to set their own working hours.

This is where labor law must respond to how society is reading the moment. For years, it sought to prevent employers from imposing long hours to avoid paying overtime, or from disguising employment relationships as professional services to evade social security contributions. Yet, paradoxically, it is now the workforce itself, raising the banner of quality of life, that is proposing work arrangements that break the rules originally created to protect it.

Clearly, these are different premises and different social moments. What the law always sought to protect was people's quality of life, ensuring that the need to work did not undermine it, and remote work, as the starting point of flexibility, seems to be achieving that. What the rigidity of the law could not achieve, the flexibility driven by the candidate's market seems to be achieving.

If we truly want labor flexibility to fulfill its essential purpose, improving the lives of people, yours, mine, our children's and grandchildren's, we must dare to make our own rules more flexible. It is time to review and reinterpret some of the universal principles that gave rise to labor law, adapting them to a profoundly different social and productive reality.

Labor law was born to protect human beings from their own worst instincts. It is, and will remain, a tool for fostering social peace. But we must allow it to evolve, rather than cling to rigid schemes that belonged to a production model from another century.

Inquiries: aas@aguilar.law