Teleworking is a type of remote work characterized by the use of communication and information tools to decentralize work activities previously performed at the employer's headquarters to a distance learning modality.
Due to new work arrangements and the development of COVID-19 , teleworking has become increasingly popular in recent months. Consequently, it is also becoming more common in law firms.
In this article, we will share more details about the fundamentals, legislation, and doctrine of teleworking. So, let's get started.
What is teleworking?
Teleworking is often used as a synonym for "home office," however, its concept is not limited to "working from home," but rather a form of remote work, that is, independent of the physical location where the worker is located.
Furthermore, the legal provisions for remote work appear in Article 6 of the Consolidation of Labor Laws (CLT), which eliminates the distinction between work performed on the employer's premises and work performed remotely. See:
"Article 6. No distinction shall be made between work performed at the employer's establishment, work performed at the employee's home, and work performed remotely, provided that the conditions for an employment relationship are met."
Sole paragraph. For the purposes of legal subordination, telematic and computerized means of command, control, and supervision are equivalent to personal and direct means of command, control, and supervision of the work of others.
More recently, the Labor Reform ( Law 13.467/2017 ) introduced a new chapter in the CLT (Consolidation of Labor Laws) specifically dedicated to the topic: Chapter II-A, "On Telework," articles 75-A to 75-E.
The devices define teleworking as:
"The provision of services predominantly outside the employer's premises, using information and communication technologies that, by their nature, do not constitute external work."
Therefore, external operations, such as those of drivers, sales representatives, salespeople, and travel assistants who do not have a defined workplace, are not considered telework.
Read also: Workplace Harassment: everything you need to know as a lawyer
What are the advantages of teleworking?
Remote work brings many benefits to employees, the company, and society.
Below, we list some of them:
Advantages of teleworking for the employee
- It provides greater time flexibility;
- It reduces stress;
- It helps to reconcile family and professional life.
Advantages of teleworking for the company
- Reducing expenses related to physical space and logistics;
- Increased productivity by reducing unnecessary interpersonal interaction.
Advantages of teleworking for society
- Reduced pollution due to lower emissions from cars and public transport;
- Reducing traffic congestion;
- Reducing accidents in transportation.
How does the workday work when working remotely?
According to the law, teleworking does not include overtime, meal breaks, or night shift pay.
We will see that teleworking falls under the exceptions provided for in article 62 of the CLT (Brazilian Labor Law) , that is, teleworking is exempt from working hour control.
"Article 62 – The following are not covered by the regime provided for in this chapter (ON WORKING HOURS):"
III – employees working remotely.”
However, legal doctrine states that if an employee's work schedule can be monitored through computerized means, even in a telework arrangement, then payment for overtime, meal breaks, and night shift differentials may be included.
How does hiring for remote work work?
The contract must clearly stipulate the teleworking arrangement and must also specify the activities to be performed by the employee.
"Article 75-C. The provision of services in the telework modality must be expressly stated in the individual employment contract, which will specify the activities to be performed by the employee."
Furthermore, the law states that the contract must stipulate the purchase, maintenance, or provision of equipment, work infrastructure, and responsibility for reimbursing employee expenses. Let's examine this:
"Article 75-D. The provisions relating to responsibility for the acquisition, maintenance or supply of technological equipment and the necessary and adequate infrastructure for the provision of remote work, as well as the reimbursement of expenses incurred by the employee, shall be stipulated in a written contract."
Also, the labor reform offered the possibility of changing to in-person work under the following circumstances:
"§ 1. The change between in-person and remote work arrangements may be made provided there is mutual agreement between the parties, recorded in a contractual addendum."
§ 2. The employer may change the telework arrangement to in-person work, provided that a minimum transition period of fifteen days is guaranteed, with corresponding registration in a contractual addendum.
Finally, the CLT also stipulates that participation in certain activities at the employer's premises does not affect the configuration of the telework system.
Points of attention for lawyers
The inclusion of telework in the CLT (Brazilian Labor Law) represents progress and an adaptation to current economic activities. However, lawyers need to pay special attention to the following points:
Local News
The location where the service is provided is irrelevant to the characterization of the employment relationship.
Therefore, as long as the requirements of an employment relationship are met (personal service, regularity, remuneration, and subordination), the worker can perform the activities at home or in any other location of their preference.
Health and work environment
The Consolidation of Labor Laws also addresses the health of its employees.
Article 75-E stipulates that employers must clearly and conspicuously instruct employees on preventive measures to be taken to avoid occupational diseases and accidents, including requiring the employee to sign a liability waiver.
However, monitoring compliance is very difficult, especially when working from home. Furthermore, even if the employee signs a liability clause, the risk of the activity must still be borne by the employer.
MP 927 / 2020
Finally, it should be noted that Provisional Measure 927/2020, which also addressed teleworking during the COVID-19 pandemic, expired on July 19, 2020.
Therefore, due to new work relationships and the development of COVID-19, some elements of teleworking are becoming increasingly common in the labor demands of law firms.
Therefore, this article has strived to provide the most up-to-date and detailed information on the fundamentals, legislation, and doctrines concerning the topic.