Labor Reform: Aspects of regulation of home office

Law No. 13467/177 presented the legal concept of telework or home office and brought the conditions for its execution. Such regulation was important for bringing legal certainty, as this modality is increasingly present in the daily work relations.

Definition

Telework, or home office as it is popularly known, is the provision of services predominantly outside the employer's premises, using information and communication technologies that, by their nature, do not constitute external work.

Employment agreement

The method of telework should be expressly included in the individual employment agreement, specifying the activities carried out and the expenses with the acquisition, maintenance or supply of the technological equipment and the infrastructure necessary for the provision of remote work.

There is the possibility of transition from face-to-face and teleworking as long as there is an agreement between employer and employee registered in a contractual amendment.

It is important to emphasize that the employment agreement should indicate the person responsible for the acquisition, maintenance or supply of the necessary technological equipment and infrastructure, adequate to the remote work performance, as well as the reimbursement of expenses incurred by the employee. In the absence of a contract or contractual amendment specifying the responsibility for the necessary equipment and infrastructure costs, these may be attributed in their entirety to the employer, for this reason the agreement or contractual amendment is of fundamental importance.

Also, except for specific rules, the employee who works by the teleworking regime maintains the same labor rights and social security benefits of the company's other employees as vacations, Christmas bonus salary, maternity leave and so on.

Control of working hours

With the alterations promoted by the labor reform, teleworking employees were excluded from CLT chapter II (WORKING TIME), thus, by the new wording of item III of article 62 of the CLT, as a rule, these workers will not be subject to control of working hours and consequently to the payment of overtime, a situation similar to those that exercise a position of trust. However, because it is a new legal provision, and in the face of dissent and lack of jurisprudence on the subject, we encourage you to take cautious about the application of this rule, since we have already observe understandings in a way of being mandatory the payment of overtime when the employer can control the working hours.

Likewise, although it is foreseen to change the current agreements for the telework regime, due to possible direct harm to the employee, considering that the amendment may suppress the payment of overtime, we are aware of the risk of nullity due to a direct affront to the principle of injurious contractual inalterability, provided for in Article 468 of the CLT.

Safety and Health at Work

The legal norm defines that the employer must instruct the employee in an explicitly and ostensive way, about precautions against illnesses and accidents at work and provide a term of responsibility to be signed by the employee, undertaking to follow the instructions received from the company.