Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
In recent years, the way work is carried out has undergone significant technological, industrial and methodological changes, which have required employers and employees to adapt to new forms and modus operandi of work.
Technological development has directly affected labor relations, with significant repercussions on the legal rules that guide them, one of which is the regulation of teleworking .
Employees, who were previously tied to the physical environment of the company, now have the opportunity to carry out their activities in their own homes, as access to new technologies has been expanded, reaching various professional branches.
Law 13.467/2017, also known as the Labor Reform, added a new chapter to the Consolidation of Labor Laws regulating teleworking, including Chapter II-A and articles 75-A to 75-E.
With the Covid-19 pandemic, even more adaptations were required to carry out the work, so teleworking/homeoffice was one of the fundamental alternatives for companies to continue with their activities, preserving the health of workers and ensuring the full functioning of their operations.
In addition to the benefits for companies, many employees are interested in joining the home office because of the many advantages, such as increased productivity, reduced time and expenses for commuting and eating out.
However, what has been widely discussed, including the subject of bills, is the continuous non-compliance with the employee’s working hours, most often based on article 62 of the CLT, included by the Labor Reform, which states that teleworking employees are excluded from the control of working hours.
In fact, it can be seen at this point that the constant attachment to work, with no limits on the length of the working day, subjecting employees to grueling hours, with no disconnection, directly affronts the fundamental rights laid down in our Federal Constitution, as well as the various international normative diplomas ratified by Brazil, such as the Universal Declaration of Human Rights.
At this point, jurisprudence and doctrine have brought about an important debate in relation to the employee’s right to disconnect, which consists of the right not to work excessive hours or to disconnect from their work.
According to Mendonça, it is the right to “completely disconnect from the company, i.e. to turn off the computer, the telephone, the beeper, or whatever means they use to communicate with their employer”[1].
The right to disconnect is an employee’s fundamental right and a standard of occupational safety and hygiene. It is an indispensable right for guaranteeing the dignity of the human person.
In this vein, the Labor Prosecutor ‘s Office recently issued a Technical Note addressing relevant issues: it dealt with the employee’s right to disconnect, and the subject is considered to be of great relevance to this body and to the Labor Courts.
It is therefore important for employers to take a more critical look at the issue. The use of new technological tools has brought great progress to both commercial and employment relationships; however, limits must be set.
It should also be borne in mind that, despite the legal exception to the payment of overtime, if there is actual proof that the work was charged for, supervised or monitored, the chances of the company being ordered to pay overtime are high.
This means that the legal risk lies not only in the possibility of paying overtime or not, but also in moral damages for long working hours and the recognition of occupational illnesses such as Burnout Syndrome.
It is therefore recommended that policies be created with express guidelines on disconnection, that there be a change of culture in the company, a work etiquette with general guidelines on the use of tools and the right to disconnect.
It is important for employers to bear in mind that the indiscriminate use of today’s tools for communication between the company and the employee can cause a great deal of damage, not only to companies, but especially to the employee, as this mental connection without rest can lead to mental disorders and damage to the individual’s social relationships.
Therefore, given the speed of technological innovations, it is essential to pay special attention to the new types of employment contract. This is why some caution is required, especially when it comes to the employee’s right to disconnect from the home office.
It is therefore important to be guided by a team of specialized lawyers, such as Marcos Martins Advogados, who are always on hand to help companies adopt strategic and targeted solutions.
[1] MENDONÇA, Talita Rodrigues. Teleworking and the Right to Disconnection as a way of guaranteeing the enjoyment of the Interval Intrajornada. Revista do Tribunal Regional do Trabalho da 6. Região. Recife, PE, v.19, n. 36, p. 238 jan/dez/2009.
