Lack of home office regulation triggers lawsuits in court | Competitions and Employment

For experts, this increase is due to the lack of clearer rules for the type of work, which generates legal uncertainty for both companies and employees.

The need to ensure the rights of workers led the Public Ministry of Labor (MPT) to issue a series of recommendations on the Ministry of the Interior. Among the points are the written contract record, ergonomic parameters, rest and adaptation breaks, offer technological support, prevent work accidents and respect the working day.

However, these indications do not have the force of law, but will be a kind of script that the MPT will use for complaints related to the type of work.

The parent company, which before Covid-19 still covered few companies in the country and was implemented a few days a week, ended up being the solution found by employers during the pandemic to maintain activities and avoid the risk of contamination of workers . However, the MPT sees the modality as a challenge, since in many companies teleworking can change from emergency to permanent, which reinforces the need for inspection.

According to the IBGE National Household Sample Survey (Pnad), in September there were 7.9 million people working remotely, 9.5% of the employed population in the period, 82.9 million.

Working hours and financial compensation are challenges

According to experts, more than eight months after the start of the pandemic in the country, Companies and workers still have difficulty following the rules for this type of work, which carries the risk of the working limit being ignored, provided by the Consolidation of Labor Laws (CLT) in 8 hours a day and 44 hours a week. Another problem is spending employees to work outside the company.

“It is a fact that remote work has emerged as an alternative to maintain the provision of services in the pandemic and that today many companies and workers recognize in this form of service provision the most appropriate and efficient model for the development of their activities, ”says Ruslan Stuchi. lawyer specialized in Labor Law and partner of Stuchi Advogados.

“However, the rules on the subject in the CLT are still very open and need to be adopted with other international regulatory standards,” he adds.

The labor lawyer Erick Magalhães, partner of Magalhães & Moreno Advogados, denounces cases of non-compliance with the limit of working hours after the adoption of remote work in the health crisis.

“There are people who work from home from 12 to 15 hours a day because they are forced to complete this trip on pain of not being able to deliver the required work and not meeting their objectives. Many of these professionals log into an internal company system, a protected data network. Using current technological resources, the company has the necessary means to control the effective working time of the employee, and must pay for overtime ”, defends the lawyer.

Mayara Galhardo Felisberto, a labor lawyer at Baraldi Mélega Advogados, recalls that many companies had little time to adapt to teleworking. “The health crisis occurred suddenly and small and medium-sized companies were not prepared. The tendency is that, with the maintenance of the central office, there will be an adjustment of the employee’s work environment and, consequently, financial compensation ”.

Remote work began to be regulated by the labor reform in 2017. Labor legislation determines that the provision of the service in the form of teleworking can take place anywhere, predominantly outside the employer’s premises, such as in the worker’s residence . There should be no control of working hours by the employer, which makes the right to additional overtime impossible, a minimum interval between working hours, among other rights.. As a general rule, the employee is responsible for controlling his trip.

According to the new labor law, the adoption of teleworking must be expressly stated in an individual employment contract or in a modification, by mutual agreement between the parties.. It must be formalized how the cost and supply of materials and equipment necessary to provide the activity will be provided, such as the use of the computer and electricity expenses. The employer is also responsible for instructing employees on health, ergonomics and safety regulations at work, which must be followed by employees.

According to Mayara Galhardo Felisberto, there are also articles in the CLT that deal with sports. Articles 6, 62 and 83 provide the means to guarantee the rights of both the employee and the employer, since they are guidelines for carrying out activities at a distance. Articles 6 and 83, for example, guarantee the worker the basic salary and equality in relation to the work performed in the employer’s establishment and the work performed at the worker’s home or at a distance.

Article 62, for its part, assures the employer that remote activities are carried out without interference from the company regarding the days and times of execution, eliminating the need to pay overtime or compensation, since the worker himself organizes your trip.

The lawyer affirms that the main problem of remote work that gives rise to labor lawsuits is precisely the control of the working day.

“In any case, the employee may take action by requesting overtime, rest and meal breaks and between the end of one day and the beginning of the next. However, you must show that the employer not only supervised your trip, but also organized your schedule, which can result in the employer being ordered to pay the extra day, ”he explains.

According to Mayara, article 75-C, brought by the labor reform, establishes that for the hiring or change of face-to-face activities for telework activities an individual labor contract is required between the employee and the employer, specifying the type and what activities the employee.

“The absence of a specific contract between the parties, as well as a specific training, can generate labor demands,” he says.

The lawyer recalls that employees who began remote activities as a result of the pandemic were covered by Provisional Measure 927, which expired in July. The MP provided the forecast for the implementation of telework without the need to change the employment contract and the prevalence of individual agreements between bosses and employees on labor laws.

“Companies and employees who choose to continue teleworking after July 19, must regularize the situation of employees as soon as possible, by means of a contractual modification, avoiding possible labor lawsuits,” he points out.

With the resumption of activities, many companies are choosing to keep employees on a hybrid regime, that is, some days at home and others at the company.

For Mayara Galhardo Felisberto, the current legislation does not clearly contemplate the rights and duties of employees in the case of a hybrid modality, requiring the creation of regulatory legislation, which is already being discussed by the Legislative Power (read below).

“Although we do not have specific legislation on the matter, the guidance for companies that choose this modality is to enter into an individual contract with the worker in which it is described which activities will be carried out through the Ministry of the Interior and which will be carried out in person , as well as at what times and at what times their form of control when they are in person ”, he indicates.

The lawyer also recommends the availability of work hours in advance, health and safety courses at work, in addition to making it clear to the employee what benefits will be awarded.

For lawyers, hybrid work requires companies to continue to meet the criteria of face-to-face work, with the risk of being penalized, even if the employee has accumulated overtime or has an accident on the days that he is in the central office.

According to labor lawyer Bruno Régis, from Urbano Vitalino Advogados, companies will have to find ways to protect themselves. “The first point in this regard is the consent of the worker to the scheme to be adopted, either individually or in a collective agreement.”

Régis says the hybrid work regime is here to stay and companies will have to start imposing limits on working hours. “This is what is already happening, for example, with managers, who have their e-mails and telephone lines disabled after hours and holidays,” he explains.

“We have been advising companies to act with common sense. If the employee agrees and it is convenient for him to maintain the hybrid regime, we have said that the company must do so with caution, always with the consent of the employee ”, he says.

Congressional bills

There are at least six bills in the Chamber of Deputies and the Senate that deal with the regulation of the Ministry of the Interior.

Among the points of the projects are:

• obliges the employer to provide and maintain equipment and infrastructure suitable for the provision of remote work, except as provided in a collective agreement, and to reimburse employees for electricity, telephone and internet expenses. In addition, it subjects teleworking employees to the rules relating to the working hours of workers in general.
• gives priority to the provision of teleworking services to employees with children 3 years or younger.
• the company is responsible for work accident and the necessary and adequate infrastructure to provide remote work.
• provides for home office implementation only in public service.

There is also the initiative of the FMU lawyer and graduate professor Ricardo Calcini, who formed a working group at the request of deputy Rodrigo Agostinho (PSB-SP) to develop a more in-depth regulation for the Ministry of the Interior.

There are 70 people involved, including lawyers, law professors, judges, members of the Federal Public Ministry and labor inspectors. Among the topics covered are working hours, ergonomics, occupational safety, remuneration and the minimum requirements respected in collective bargaining. The conclusions of this working group will be brought to Agustín.

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