The growth of the Covid-19 pandemic and the restrictions on movement suddenly required a change in the routine of employees, altering the form of work from in-person to teleworking (commonly known as home office) in order to mitigate the spread of the disease. See how overtime and other matters stand.
Due to this change of scenario, which was recognized by the Federal Government as a public calamity, the Provisional Measure No. 927/2020 that was issued allows the change of the work regime from in-person to home office, remote work or another type of distance work, and even the determination of a return to the in-person work regime. Regardless of the existence of individual or collective agreements, the prior registration of the change in the individual employment contract is waived.
The Provisional Measure, following the changes of the labor reform, defined as telework, remote work or distance work the provision of services predominantly or entirely outside the employer’s premises, with the use of information and communication technologies that, by their nature, do not constitute external work.
Overtime
With regard to overtime, the employer, according to art. 62, III of the CLT, is exempt from controlling the working hours of its employees under the telework regime. This means that these employees, in theory, are not entitled to remuneration for supplementary working hours (overtime), night work, on-call duty, for example.
And Provisional Measure No. 927/2020 expressly provides that the time of use of communication applications and programs outside the employee’s normal working hours does not constitute time at the employer’s disposal, a standby regime or on-call duty, except where there is provision in an individual or collective agreement.
With regard to the proportional reduction of working hours and salary provided for in Provisional Measure No. 936/2020, the rule is generic, with a broad provision that applies to all employees. However, if in this modality of work regime there is no control of working hours, how does one reduce working hours and salary?
Regarding the control of working hours in home office work, Ordinance 373/2011 of the Ministry of Labor and Employment, which provides on the possibility of employers adopting alternative systems for controlling working hours, provides that the “alternative” controls of working hours, such as those made by login into systems, applications, telephone systems or via the internet, are authorized only if negotiated with the employees’ union.
In this scenario, if the salary reduction is applied to employees under the home office regime who do not have “alternative” controls of working hours, the salary reduction may be challenged in the future on the allegation that there was no reduction in working hours.
This article is generic and informative in nature; it does not constitute legal opinion for any specific case.
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