By Luciana Lupinucci
In effect since March 28th, MP No. 1,108/2022 introduces important changes to the rules about remote work that had been laid down in the Brazilian Consolidation of Labor Laws (CLT). Companies must pay attention to the points addressed, especially at this time when many have adopted the remote or hybrid work arrangements.
In fact, it was necessary to fill existing gaps in the labor laws surrounding the matter. The method, however, was not the most suitable, as an MP is an executive order issued by the President that has a fixed validity period and, as opposed to the laws passed by the Legislative branch, it does not offer the possibility for an open debate. Its legal text is sent to the National Congress, which has up to 120 days to review it and convert it into law. Should this not occur, the Act expires, losing its effectiveness.
This fact alone raises practical concerns for companies, which are left without the necessary input to implement internal policies for a longer period, since the MP may have its text changed or even expire altogether.
At any rate, the rule is still in effect and cannot be disregarded. Find out below the major points brought about in the MP No. 1,108/2022:
A welcome aspect of the MP is that the Act outlines the concept of remote work (or telework), changing the text of Art. 75-B of the CLT to make it clear that remote work and occasional on-site services performed by employees are not mutually exclusive. The new wording is as follows:
“Telework or remote work is the rendering of services outside the employer's premises, whether prevalent or not, with the use of information and communication technologies, which, by themselves, do not constitute external work”
Another related point that has been elucidated is that remote work is not to be confused with or equated to services performed by telemarketing or call center operators.
With this new definition, there is a gain in flexibility as services can be provided either within or outside the company, regardless of which one is prevalent. In practice, it makes no difference whether the employee will work two days from home and three days on the company's premises.
Hybrid work – a work arrangement that shall be implemented by a large number of companies in the post-pandemic environment - has now essentially been regulated.
According to the new rules, on-site work may prevail over remote work and vice-versa. Remote work is not disregarded even if employees need to come to the company to perform specific activities on a regular basis.
It should be stressed that companies must bear the food costs for all the days worked, regardless of where their services have been provided. Transport allowances shall be provided only on the days when commuting to work is required.
According to the legal text, employees subject to the remote work arrangement may render services by production or tasks. This is one of the innovations brought about by the executive order. In this case, those employees will not be subject to working hours control nor will they receive overtime compensation.
This is one of the Act’s major topics, as the rule previously in effect was changed significantly. Previously, employees working under remote work conditions were excluded from laws regarding working hours and overtime rates.
Therefore, it is worth noting that every employee who works under remote and/or hybrid arrangements must have their working hours controlled and receive overtime compensation whenever they work beyond their normal working hours, unless they provide services based on production or tasks.
Individual agreements may provide for working hour conditions and means of communication between employees and employers, provided that the rights to legal breaks at work are not violated.
Outside normal workdays, time spent on handling equipment and infrastructure used for remote working will not be considered standby or on-call duties, unless individual agreements or collective bargaining agreements state otherwise.
The Act clearly allows for the implementation of remote work arrangements for interns and trainees, a topic that used to prompt questions from those involved in personnel management.
The text outlines new rules for when teleworkers move to a different location from where they were hired. In this case the law of the place where the contract was entered into applies.
Should an employee hired in Brazil choose to work remotely from outside the country, the Brazilian law will apply. This used to be one of the issues that went unaddressed in the labor law environment.
We draw attention to this topic, since remote work schedules do not exempt employers from complying with the regulations established by the Ministry of Labor, such as the Pre-Admission Medical Exam.
The Act establishes that the provision of services under remote work arrangements must be expressly stated in the individual employment agreement.
This document should also be used to address other issues related to providing services under this work regime, safeguarding both employer and employee.
DPC's labor and social security team acts in a proactive way, providing orientation to its clients and ensuring full compliance with the regulations. With comprehensive solutions, the department provides operational and business consultant support for full compliance with personnel management demands. You can count on our support: email@example.com.
Author: Luciana Lupinucci, partner at Domingues e Pinho Contadores.
Domingues e Pinho Contadores has specialized team ready to assist your company.
Contact us by the e-mail firstname.lastname@example.org
Av. Rio Branco 311, 4º e 10º andar - Centro
CEP 20040-903 | Tel: +55 (21) 3231-3700
Rua do Paraíso 45, 4º andar - Paraíso
CEP 04103-000 | Tel: +55 (11) 3330-3330
Rua Teixeira de Gouveia 989, sala 302 - Centro
CEP 27910-110 | Tel: +55 (22) 2773-3318