Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
According to the Aurélio Online Dictionary, teleworking (home office) is: “Professional activity carried out outside the physical space of the employer, with the aid of distance communication and data transmission technologies”[1].
Teleworking is also known as: remote work; distance work or home office, and is currently growing extremely rapidly.
It’s worth noting that the term “teleworking” emerged in the 1970s, when the world was going through an oil crisis and, due to concerns about all the costs related to the worker traveling to the employer’s physical space, the execution of activities was transferred to the home of this first figure.
However, it wasn’t until the third industrial revolution that the link between this term and technology itself was effectively maintained, with computers, cell phones, landlines, networks, the internet, robotics, among others.
We’ll now explain how teleworking used to be, and how it has changed with the new Labor Reform, established by Law No. 13,467 of 2017.
Article 6 of the Consolidation of Labor Laws (CLT) states the following, “in verbis” :
- “Art. 6. No distinction is made between work carried out at the employer’s establishment, work carried out at the employee’s home and work carried out at a distance, provided that the assumptions of the employment relationship are characterized. (Edited by Law No. 12,551 of 2011).
- Sole paragraph. Telematic and computerized means of command, control and supervision are equivalent, for the purposes of legal subordination, to personal and direct means of command, control and supervision of the work of others. (Included by Law No. 12.551, of 2011)”.
In fact, it’s essential to point out that the CLT didn’t deal with the issue precisely, which is why all employers were wary of this modality. Greater and better use was only made of it with the Labor Reform in force, since it brought specific and effective rules, so as not to generate doubts about this way of working.
The Labor Reform, Law No. 13,467 of 2017, included “Title II, Chapter II-A, Telework”, in articles 75-A, 75-B, 75-C, 75-D and 75-E.
Article 75-B, provided for in the Labor Reform, translates exactly what the term teleworking is, “in verbis” :
- “Art. 75-B. Teleworking is considered to be the provision of services predominantly outside the employer’s premises, using information and communication technologies which, by their nature, do not constitute outside work.
- Sole paragraph. Attendance at the employer’s premises to carry out specific activities that require the employee’s presence at the establishment does not de-characterize the teleworking regime.”
In other words, for the term “teleworking” to be effective, the worker does not necessarily have to be working remotely every day. They can work most of the time remotely and remain indoors for meetings, for example, and still not mischaracterize the term itself.
Nowadays, in light of the Labor Reform, the home office modality must be included in the individual employment contract, with all the specifications of the activities that will be carried out by the worker on behalf of their employer.
If the worker is working in person and wants to change to the home office, the employer must agree to this, and vice versa.
On the other hand, if the employer decides to change the worker’s working mode from home office to in-person, it must give the worker a minimum of 15 (fifteen) days for this transition, precisely because it involves the worker having to travel, which was previously unnecessary.
As for the costs, the Labor Reform does not allow the employer to pass them on to the worker who works in this home office modality, and all these costs must be transparent, so as not to cause any damage to the worker.
It is also important to note the provisions of Article 75-E of Law No. 13,467 of 2017, “in verbis” :
- “Article 75-E. The employer must expressly and ostensibly instruct employees on the precautions to be taken in order to avoid illnesses and accidents at work.
- Sole paragraph. The employee must sign a term of responsibility undertaking to follow the instructions provided by the employer.”
An example of this would be the way workers behave when carrying out their tasks at home.
There are people who work remotely without the right clothes, without the right posture, without the right location for the equipment, which can cause various health problems for the worker.
Because of this, the Labor Reform brought in the employer’s responsibility to inform of any risks, in addition to committing the worker to signing the information passed on, which certainly wouldn’t remove 100% (one hundred percent) of the employer’s possible risks in a future Labor Lawsuit.
Therefore, with all the improvements made to the subject by the Labor Reform, it is necessary to point out the main positive and negative points.
Positive points
Post Labor Reform Negative points
Post Labor Reform
Cost reduction; Exploitation of workers;
Increased motivation; Conflicts with internal workers (those who don’t work from home);
Flexible workers; Isolation of the worker;
Prevention of external disturbances; Remote supervision by the employer
employer;
Retaining the best workers, with the most skills, training and talents. Different ergonomic and hygiene conditions from those of internal workers.
Finally, it should be noted that, despite the existence of some negative points related to the issue in question, the Labor Reform has nevertheless brought improvement and several rules that were lacking in this modality.
[1] Aurélio Dictionary. Available at: https://dicionariodoaurelio.com/teletrabalho
