Permanent Remote Work Demands New Legal Agreements and Regulations

RIO DE JANEIRO, BRAZIL – The health crisis has forced different sized companies to reorganize their office teams. Virtually overnight, they adopted different remote work models. After almost seven months of the pandemic, many of them are considering a permanent adoption of the home office.

However, there are no clear rules for this transition to be legally safe for employers and employees. On the one hand, there is concern over the disconnection of employees, who are far from the eyes of their managers. On the other, there are those who perceive a risk of this model bureaucratizing the relationship and sinking even before it is consolidated in the country.

Since the start of the pandemic, seven bills have been submitted to the Chamber and Senate proposing to change the CLT (Consolidated Labor Laws) to adapt the articles that deal with remote work.

In September, a committee coordinated by FMU (United Metropolitan Colleges) professor of labor law, Ricardo Calcini, began to prepare a draft bill. The group has 70 members, including attorneys, professors, corporate representatives, unions, and federations.

The goal is to propose a change in the CLT that also contemplates the situation experienced in offices today. “This mass of people who have shifted to remote work overnight do not have optimal protection.” says Calcini.

The CLT provides two types of work outside of company offices. One refers to work from home, the other to teleworking – the latter included by the 2017 labor reform bill.

The differences between the two are tenuous and are also related to the transformations that the labor market is experiencing. For someone to be teleworking, for instance, their activity must be mostly performed through information systems, such as computers or telephones.

For instance: a seamstress who produces garments for her employer from her home is working from home, but not teleworking. According to the CLT, this worker has the same rights as those who work on-site, including working hours control.

One of the most critical points in the teleworking framework is precisely this, the control of working hours. “I’m fully convinced that not everyone in telework needs to have working time control, but the most conservative guideline is for companies to control it. Also to prevent judicialization,” says Calcini.

Despite the law’s provision, attorney Luiz Calixto Sandes, of Kincaid Mendes Vianna Attorneys, is not in favor of waiving control. He considers that the respect to the agreed working day protects the health of workers, but also prevents exposing the company to risks.

“You can’t have people sending emails, working at nine, ten o’clock at night. It is something that we know is happening in the home office, but that the law does not allow. It is a risk for both.”

Trench Rossi Watanabe partner in the labor area Letícia Ribeiro considers the possibility of making it compulsory to control the workday a risk to the adherence of home office in the labor market.

“Basically, flexibility would be eliminated, which is also attractive to many employees,” she says. In September, the Labor Court Prosecutor’s Office published a technical note with 17 points that will serve as a guideline for the prosecutors’ work and, among them, included the proposal that companies adopt employee working time monitoring tools.

Alberto Balazeiro, chief labor prosecutor, says the note is merely an interpretation of current legislation. “In the emergency, you allow exceptions. It’s clear that teleworking is a reality and we have to find a balance point,” he says.

The Labor Prosecutor’s Office (PGT) says that the publication is also an invitation to debate the conditions of this work, which is now performed at home. Balazeiro says that telework included with the reform assumed the freedom of the employee to establish a routine and meet demands.

“In practice, the current telework was just a change of location, much more similar to home office. You work from 8 AM to 6 PM, all the time, and worse, with extended working hours, without the right to disconnect. You go through your shift and you keep answering emails, WhatsApp, phone calls.”

The Trench Rossi Watanabe attorney advocates discussing ways to curb excesses, but without them harming the practice, which she considers successful. “Those who can engage in teleworking already have a different profile. Not all positions allow this kind of remote work. And today, they are realizing the advantages of flexible hours, of a greater interaction with the family, of avoiding traffic,” she says.

In the week ended on September 19th, 7.8 million employees were working remotely in Brazil, according to Pnad Covid, a survey by the IBGE (Brazilian Institute of Geography and Statistics) to monitor the impact of the pandemic on labor. Of these, more than half (4.4 million) are located in Brazil’s Southeast region.

For Leticia, if remote work begins to reproduce the company office routine, the advantages will vanish. “If an employee must log in at 9 AM, he/she will be forced to stop at 1 PM, to be available again for a certain fixed period of time later. It will no longer be interesting”, she says. “The focus is on delivering work.”

The MPT’s note also recommends that companies guarantee the necessary equipment for the job execution and adopt a “digital label”, in order to guarantee the employees’ right to disconnect.

For attorney Cláudia Orsi Abdul Ahad Securato, from Oliveira, Vale, Securato & Abdul Ahad Attorneys, the prosecutors’ note is aimed at preventing typical abuses in new situations. “We know that there are advantages in working from home, particularly in big cities, but we live in a country that does not have digital equality.”

In the pandemic, the adoption of telework or work from home was covered by Provisional Measure 927, dated March 22nd, which facilitated its adoption, dispensing with the individual agreement and the 15-day notice period, for instance.

The Provisional Measure expired on July 19th, but according to Luiz Calixto Sandes, the companies that adopted it while it was in force are protected. “My opinion is that the legal rule applies, so whoever adopted the home office simply by warning will remain so,” he says.

For those who consider stretching teleworking, the experts agree that the legislation does not cover the current arrangements. Companies need to make agreements. Larger companies, with access to unions, should seek collective bargaining solutions.

For smaller companies, Calcini recommends reaching individual agreements or creating conduct regulations, which can provide parameters for working hours, remuneration and the right to disconnection.

Another option is for companies to adopt a hybrid model. If three days of on-site work are maintained during the week, the arrangement will not fall into teleworking.

• THE 17 RECOMMENDATIONS OF THE LABOR PROSECUTOR’S OFFICE

The technical note provides measures that the prosecutors consider important:

Digital ethics

To respect digital ethics in the relationship with workers, preserving intimacy, privacy and personal and family security.

Contract addendum

Including teleworking in the contract, by means of an addendum, covering the duration of the contract, responsibility and infrastructure for remote work, as well as reimbursement of work-related expenses.

Ergonomics and comfort

Observe the needs of organization for work in terms of ergonomics, organization and interpersonal relations, such as the format of meetings, feedbacks and transmission of tasks.

Telemarketing sector

To guarantee the sector worker the application of the Regulatory Norm #17, with the establishment of pauses and breaks for rest, relaxation and meals, to prevent psychic overload, static neck, shoulder, back and upper limb muscles.

Technical support

Offering technological support, guidance and training to workers for the use of remote work platforms.

Health and safety

Train employees on the precautions to take in order to prevent illness, physical and mental and work accidents, and also how to take breaks and work exercises.

Adapt to routine

Observe the contractual workday, with the compatibility of the company and workers’ needs regarding family responsibilities.

Respect for disconnection

Guide the whole team to comply with virtual schedules to attend demands, ensuring rest time and the right to disconnection, as well as measures to avoid intimidation.

Privacy

Respect for image rights and privacy by directing and providing avatars, standardized images or templates for use in online streams.

Assignment of rights

Ensure employees authorize the use of image and voice in the production of materials for disclosure on open digital platforms.

Setting deadlines

Ensure that the use of materials produced during the pandemic are restricted to periods under the health crisis.

Individual freedom

Guarantee the exercise of freedom of expression, except for offenses that are considered libel, insult and slander.

Health care

Establish self-care policies to identify potential signs and symptoms of Covid-19, with guaranteed subsequent isolation.

Elderly

Ensure that teleworking is offered to the elderly in such a way as to promote freedom and the right to work, respecting physical, intellectual and psychological conditions.

People with disabilities

Ensure that teleworking favors people with disabilities, obtaining and retaining employment and career progression, ensuring accessibility and adaptability.

Controlling the workday

Adopt time control mechanisms.

Attention to dismissals

Encourage the creation of professionalization programs for the dismissed workforce.

• REMOTE WORK IN THE LABOR CODE (CLT)

Teleworking

According to the legislation, it is performed by electronic means, such as computers, telephones, etc.

Teleworking workday

This type of contract falls within the exceptions provided for in the CLT, equating such workers to external salespeople and to management and direction positions.

Home office

The CLT refers to “work from home”, which is basically the transfer of the workplace.

Home Office workday

It is the same as on-site office work and entitles workers to overtime and extra time pay.

Remote work in the pandemic

The workday with a start, lunchtime, and end schedule is not teleworking, but rather home office or work from home, according to the MPT.

• WHAT STILL REQUIRES REGULATION

Workday

The attorneys recommend that, if companies were already monitoring the workday, that this be maintained until a new rule is in place.

Equipment supply

The CLT says that this should be agreed between employer and employee; the most advisable is to negotiate the conditions for working from home.

Digital label

Brazil still does not have a rule on the right to disconnect, but it is recommended that companies adopt codes of conduct that prevent communication with employees after a certain time of day or number of hours worked.

Source: Folhapress