Isolete Agatha de Oliveira
Lawyer at Marcos Martins Advogados
The issue in question has always been the subject of discussion and controversy for companies, since for the employer the cost of providing transportation and the concomitant payment of overtime became unfeasible and discouraging.
Law No. 13,467/2017, enacted on July 13, 2017, became a milestone in the legal system. The law, now known as “the Labour Reform”, brought about considerable changes to the CLT, one of which was the regulation of teleworking (home office).With the creation of new forms of work organization and rampant technological development, the legislator noticed the need to adapt and regulate the type of work known as home office.
Teleworking (Home Office) has become increasingly common in the labor market, as well as in the country’s entrepreneurial ecosystem, but there was no legal certainty for employers and employees on the subject.
The Labor Reform has regulated this work regime, providing greater security and allowing its use to increase considerably.
The new text of the CLT uses the terminology telework to refer to what was previously known as the home office, and establishes the employment model as follows:
[…] the provision of services predominantly outside the employer’s premises, using information and communication technologies which, by their nature, do not constitute external work” (article 75-B, CLT).
Thus, external work and teleworking are not the same and cannot be confused.
Outside work is work carried out away from the employer’s premises, in view of their condition, such as salespeople who need to visit their clients and make sales.
Teleworking, on the other hand, can be carried out within the company’s premises, but at the option of the employer and employee, it is carried out away from the employer’s premises.
The first important aspect to note when it comes to regulating teleworking is the issue of working hours. This is because employees who work from home will not be subject to time and attendance controls, and while they will no longer be paid for overtime, they will no longer be subject to discounts, delays, warnings or suspensions.
Another aspect of the utmost importance is the drafting of this type of contract, which must be carefully drafted, specifying all the points, detailing needs, duties, rights, materials to be used, supervision by the company, to get to know the employee’s working environment, the possibility of meetings at the company’s headquarters or outside, among others that are extremely important to settle a specific contract and not contrary to the rules of this modality.
It should also be noted that this contract option is not irreversible, i.e. there is the possibility of teleworking changing to a common (face-to-face) contract regime. In this case, there must be mutual consent between the parties, employee and employer, a contractual amendment, a change in the type of contract, and a period of 15 (fifteen) days for adaptation.
Article 75-E of the Consolidated Labor Laws (CLT) lays down regulations on occupational health and safety for employees:
The employer must expressly and ostensibly instruct employees on the precautions to be taken in order to avoid illnesses and accidents at work. (Included by Law No. 13,467, of 13.7.2017)
Sole paragraph. The employee must sign a term of responsibility undertaking to follow the instructions provided by the employer.
Thus, the employer must talk to, instruct and indoctrinate its employees on occupational health and safety rules, through courses, lectures and inspections in the employee’s work environment.
Finally, like any other employment contract, teleworking must be recorded on the employee’s work booklet and other rights such as vacations, DSR, 13th salary, prior notice, maternity/paternity leave, among others, remain unchanged.
The law firm Marcos Martins Advogados is always aware of changes in legislation and case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
__
BRAZIL. Consolidation of Labor Laws (1943). Consolidation of Labor Laws. 37. ed. São Paulo: LTr, 2010.
_____. Law No. 13,467, of June 13, 2017. Amends the Consolidation of Labor Laws (CLT), approved by Decree-Law No. 5,452, of May 1, 1943, and Laws No. 6,019, of January 3, 1974, No. 8,036, of May 11, 1990, and No. 8,212, of July 24, 1991, in order to adapt the legislation to the new labor relations. Available at: < http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/L13467.htm>. Accessed on: 09 Jan 2018.
