3/29/2022
The Covid-19 pandemic has transformed the world and relationships in an unimaginable way. Proof of this is in this period we have learnt to live and work in a completely different way, reconciling these two universes in a more harmonious manner.
From the need to remain socially isolated, remote work has flourished and, today, many companies have already understood it can operate and be very positive.
Although it was already a reality for a few companies, legal barriers made it difficult to safely migrate to a new work model. In this scenario, on March 28, with the publication of Provisional Measure 1,108 (MP), which creates some rules and changes others intended for remote work, full or part time, some of these barriers were resolved, but others were created.
In general, the MP solved some impasses and questions which were not well defined until then in the legislation and generated a great legal uncertainty for employers, among which we can mention:
- Equivalence between teleworking in partial or full-time system;
- Employees’ union framework of those working remotely in a location other than the company’s premises; and
- Remote work performed from abroad.
On the other hand, it seems the change in the rule at issue of time control proved to be a setback.
Concept and characterization of Teleworking
The 2017 labor reform, which established the first rules for teleworking, defined it as predominantly performed outside the employer’s premises, through the use of information and communication technologies, and were not to be confused with external work.
According to the recently published MP, the ‘time‘ criterion is no longer relevant and there is no longer a need for the work to be predominantly performed outside the employer’s premises to be classified as remote work.
In addition, repeating the CLT [Consolidation of Labor Law] text, the MP points out that the attendance of the employee on the company’s premises, even if in a usual way, for the performance of specific activities that require their presence, does not mischaracterize the remote work.
In this regard, the merit of the MP was precisely to regulate the so-called hybrid work system, adopted by most companies nowadays, which combines face-to-face work with remote work.
Regardless of the preponderance of one system over another, in the case of a hybrid model, the existence of a written contract remains a requirement.
Besides defining teleworking, the text brings other important points. Do you want to know the main aspects dealt with – and solved – by the long-awaited MP? Find below:
1 . Working hours control
This is the most controversial point of MP.
Until the publication of the MP, all employees who work remotely were not subject to time control (article 62, III, of the CLT), although the issue was the target of numerous questions and lawsuits with request for payment of overtime.
In order to solve the issue, for the purpose of controlling the employees’ hours in teleworking, the MP created a distinction related to the control of the working day to the type of contract and work performed by the employee.
Thus, only employees who work ‘by production or task’ remain exempt from hours control, while all other must have the workday controlled (even in remote work) and eligible for the payment of overtime.
The core issue is to classify the employee’s employment contract as ‘by production or task’ (that is, compensated ‘by production or task’ other than by 200/220 hours of work per month, which seems very difficult from a practical point of view), in order to allow him/her to be exempt from hours control.
In this way, in fact, the MP changes the rule in force until then and imposes the need for hours control for practically all employees (except positions of trust and external workers) and, consequently, the payment of overtime even on days when the employee works remotely.
2 . Times for communication between Company and Employee
Through individual agreement, the company and employee shout set the schedules and the means of communication between them, ensuring legal rest.
3 . Teleworking x Telemarketing
The MP is specific in defining the remote work is not to be confused and is not equivalent to telemarketing or tele-service work, which was a relevant issue for some industries.
4 . Time of use of technologies
Although logical, the MP points out the time of use of technological equipment and infrastructure, software and digital tools required for teleworking outside the working day is not considered time available to the company.
5 . Interns and apprentices
Interns and apprentices were reminded by the MP and allowed to work in the remote system, eliminating the doubt existing until (the argument was the supervision and guidance, by the employer and typical of this type of contract, were very limited what distorted the regulations).
6 . Work performed abroad
The MP defines an important rule that concerns the application of Brazilian law to employees hired in Brazil who choose to carry out teleworking abroad, as there was a doubt about the applicable Brazilian legislation (the hypothesis of the employee who lives abroad and works for a Brazilian company).
For this employee, Law 7,064/82, the so-called expatriate law, does not apply.
For this target group, however, some other unaddressed issues remain, such as, for example, the provision of medical insurance, periodic medical examinations, meal vouchers, etc..
7 . Union framework
Historically, the union framework rule takes into account two aspects: the professional category to which the employee belongs and the place where the service is rendered.
As the place of rendering the service was usually the employer’s own premises, the trade union framework was never an issue establishing many difficulties.
In the remote work model, however, the criterion ‘location’ lost strength to the extent that each employee may be in a different location, which attracted doubt in relation to the union framework. After all, for the purpose of defining the union, the company should respect the place of its premises or the place where the employee is performing the work?
The MP also solved this issue by defining that the territorial basis of premises will be defined for union representation to which the employee is linked.
- Priority for Teleworking
In this regard, however understandable it may be, the MP has made an option that should become a challenge for employers on a day-to-day basis.
The MP establishes the companies must prioritize teleworking or remote work for employees with disabilities and employees with children or children under judicial custody up to four years of age:
“Art. 75-F. Employers shall give priority to employees with disabilities and to employees with children or children under judicial custody up to four years of age in the allocation of vacancies for activities that may be carried out through teleworking or remote work.”
That is, if there are two employees in the same position, the one included in the wording above will have priority to be allocated to a position that can be performed at a distance.
Worker’ Meal program
In relation to the PAT [worker’s meal program], the MP defined the companies should not require or receive (a) any type of discount or imposition of discounts on the contracted amount; (b) deadlines for transfer or payment that mischaracterize the prepaid nature of the amounts; (c) or other funds and benefits of any kind unrelated to the promotion of the employee’s health and food safety, at risk of fines
The rule, however, does not apply to contracts providing food allowance in progress, until its termination or until the period of fourteen months has elapsed, counted as of 03/28/2022 (date of publication of the MP), whichever occurs first.
Validity and Effectiveness term
The MP is already taking effect and the term is 60 days, extendable for the same period. In this period, the MP has to be voted in the Brazilian Congress to become law.
It should be remembered that other MPs recently edited by the federal government have not been converted into law, resulting in great insecurity. Thus, all aspects raised here will lose effect if the MP is not ratified by the Brazilian Congress.
The Labor team of LO Baptista is available to its clients for clarification on this and other labor issues.
Coauthors: Peterson Vilela Muta and Fabio Chong de Lima
