On this past September 5, Law No. 14.442 of 2022 was enacted, which brought about important changes to the Consolidation of Labor Laws, with regard to so-called telework or remote work and meal allowance.
Said legislation, which is the result of the conversion into Law of Provisional Measure No. 1.108/2022, brings the definition of what is legally considered telework or remote work. It establishes as an essential criterion that the provision of services be carried out outside the employer’s premises and allows the adoption of this regime in a predominant or hybrid manner, requiring, for this purpose, only the use of digital information and communication that does not constitute external work and that such modality expressly appears in the employment contract.
The legal text brought relevant information to resolve the most diverse doubts existing on the subject, such as, for example, expressly recording that this work regime has no relation to, nor is it to be confused with, the role of telemarketing or teleservice operator.
Hours worked
In addition, with the intention of resolving questions raised by many employees and employers who adopt this work regime, mainly with regard to the computation of hours worked, said law expressly states that the time of use of technological equipment used for telework after the employee’s normal working day does not constitute time at the employer’s disposal, except where there is a provision in an individual agreement or collective bargaining agreement.
The legal text even provided for hypotheses in which the employer will be exempt from carrying out the control of the working day, as in the case where the employee is hired to provide services by production or task.
In cases where the employee is hired by working day, the employment contract must provide for the schedules and the means of communication between employee and employer, with observance of the legal rest periods.
Priority public
A relevant point to be analyzed, as well, is the fact that the legislation prioritized the adoption of telework by interns and apprentices, persons with disabilities, and employees with children under judicial custody up to 4 (four) years of age.
Meal allowance
With regard to the meal allowance, popularly known as the meal voucher, it was expressly stated in the legal provision that its use must be intended exclusively for payment at restaurants and the like, or other establishments operating in the food sector.
Furthermore, it prohibited companies from receiving discounts upon contracting suppliers of meal vouchers, a practice that is very common nowadays. Currently, some employers obtain a rebate in the process of contracting the company that supplies the vouchers; however, said discount is subsequently transferred to the commercial establishments in the food sector, which results in detriment to the worker.
Vetoes
With regard to the payment of the meal allowance, the legal text initially presented was subject to vetoes by the President of the Republic, with the aim of preserving the public interest and, also, the rules in force in the Worker’s Food Program (PAT).
In the provisional measure submitted for analysis, there was the possibility of withdrawal by the worker of the balance of the unused meal allowance at the end of 60 (sixty) days. However, the veto occurred due to the impossibility of converting such allowance into cash, in accordance with the provision of article 457, paragraph 2 of the Consolidation of Labor Laws.
Furthermore, the excerpt of the proposal that made mandatory the transfer to the trade union centrals of any residual balances of the union contributions was vetoed, since “the breadth of the concept of ‘residual balance’ has the potential to generate administrative and judicial litigation, which would result in legal uncertainty”, as stated in the reasons for the veto.
Controversial points
Two quite controversial points relating to telework were not addressed by the new legislation: (i) the possibility of inspection of the working conditions at the employee’s residence in relation to work accidents or occupational diseases at the employee’s residence or remote work location; (ii) the obligation to provide the necessary and adequate infrastructure for remote work, such as internet and electricity, among others.
Although the legislation did not address it, the National Association of Labor Justice Magistrates (Anamatra) has already stated that the term of responsibility in which the employee undertakes to follow the instructions provided by the employer does not exempt the employer from possible liability for damages arising from the environmental risks of the work.
The conversion of the Provisional Measure into Law represents an important advance in the sense of regulating already existing labor relations, the modality of which was mainly adopted since the beginning of the pandemic, as well as of providing them with greater legal certainty, which, indirectly, enables the creation of more jobs and constitutes an attempt to overcome the economic crisis that still plagues the country.
By Bruna Paifer, attorney at Lassori Advogados
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