Cross-Border Remote Work in Switzerland

Today, employees have the flexibility to work from anywhere, including across international borders. Such a situation raises complex labor law considerations. This blog provides essential labor law insights to help employers navigate these complexities.

In today's interconnected world, many employees can work remotely, including across international borders. But this flexibility entails complex legal considerations: taxes, social security, and often overlooked labor laws. Explore these important labor law considerations in our blog. 

A variety of remote work scenarios

This article provides insights into the labor law implications of remote working in Switzerland, highlighting two key scenarios:

1. Workation: an employee who works for a non-Swiss employer is working remotely from Switzerland for personal reasons, with no ties to the Swiss market. For instance, working in Switzerland for a few days after a vacation.
2. Remote hire: a non-Swiss employer hires an employee who works primarily from a Swiss home office without having any ties to the Swiss market.

In both scenarios, the employment contracts are assumed to be governed by non-Swiss law. 

It's important to note that if – in contrast to the above scenarios – the employee is working in Switzerland for business rather than for purely personal reasons, the employee may be considered an international assignee under Swiss law, triggering additional applicability of Swiss employment and international assignment laws as well as immigration requirements.

Does Swiss employment law apply?

The first step in determining the applicable law is to examine the governing law specified in the employment contract. If none is specified, the law of the country in which the employee works most of the time will apply. Therefore, if the majority of work is performed in Switzerland, Swiss law may be applicable. 

Even with a choice of law, mandatory public and private law regulations at the place of work, i.e., in Switzerland, may take precedence. The specific Swiss regulations applicable can only be determined on a case-by-case basis. In instances of very brief stays in Switzerland, Swiss regulations may not apply. 

What legal risks should employers be aware of?

If Swiss regulations are applicable, it is key to assess which Swiss regulations must be complied with. Generally, public labor law provisions pertaining to health, working hours and rest periods, along with provisions regarding termination modalities and salary continuation during maternity, illness and accidents, are applicable in most cases. However, these mandatory provisions apply only if the applicable foreign law provides less protection for the employee.

Failure to comply with Swiss public laws, which apply territorially, may result in sanctions, while non-compliance with Swiss private laws may lead to lawsuits initiated by the employee. There is a risk that tensions between an employee and the employer, or termination of the employment contract, may prompt the employee to bring claims against the employer, invoking Swiss law to obtain the benefits provided for in Swiss public and private employment laws.

How can risks be mitigated?

In conclusion, while international remote work offers unprecedented flexibility, it also requires careful consideration of labor law implications. To mitigate legal risks, employers are advised to contractually specify the applicable law or limit the number of remote work days to avoid establishing a predominant work presence in a particular location. Addressing these issues directly in the employment contract or through subsequent agreements, such as a remote work policy, is recommended.