Leila Pigozzi Alves and Ana Carolina Silva
De Luca, Derenusson, Schuttoff Lawyers
On March 28, 2022 the Federal Government published the Provisional Measure n. 1,108 (“MP 1,108”) which, among other issues, changes the legislation on telework.
Because of these changes, and also because of the extension of the existing telework regulation to the hybrid regime, companies that had already implemented these policies will have to reevaluate their practices in view of the new rules.
Below are the most interesting points of PM 1.108/20220:
- REGULATION OF THE HYBRID WORK REGIME
Telecommuting (or the so-called “home office”) had already been included in the CLT, which considered telecommuting to be the provision of services primarily outside the employer’s premises, using information and communication technologies that, by their nature, cannot be confused with external work. It therefore left out some forms of hybrid work.
But with the changes brought by PM 1,108, the CLT chapter that dealt with telecommuting is now also applicable to the so-called “hybrid regime”, in which the days of work outside the employer’s establishment alternate with days of remote work, even if the remote work is not preponderant.
Thus, the following rules will also apply to the hybrid regime:
Requirement of a written contract: due to the extension of the telecommuting rules to the hybrid regime, there must be a written agreement for its implementation, as was already recommended.
Alteration and Cancellation of the hybrid regime: depends on mutual agreement between the parties, formalized in a contractual addendum. It can also occur by unilateral determination of the employer, as long as there is a minimum period of 15 days for adaptation and a provision in the contract.
Equipment and expenses: the rules regarding the acquisition and maintenance of equipment and infrastructure required for hybrid working must be provided for in a written agreement.
Occupational health and safety: the employer must instruct his employees on occupational health and safety issues related to remote work. The employee in the hybrid system must also sign a term of responsibility, committing to follow the employer’s instructions, as was already the case with predominantly remote work.
In addition to regulating hybrid work by the rules then existing in the CLT only for purely remote work, PM 1,108 also created new rules, which will be valid for both regimes :
- EXCLUSION FROM TIME CONTROL AND OVERTIME ENTITLEMENT ONLY FOR WORK BY TASK OR PRODUCTION
PM 108 expressly establishes that the remote employee may render services by working day or by production or task, but that only in the second case will they be excluded from working day control (and consequently from the right to overtime).
Hiring by production or task is not specifically foreseen in the CLT. However, it is understood in case law as the type of employment relationship in which the remuneration is not paid according to the time at the disposal (working day), but according to how much is produced by the employee. Thus the employee’s salary is measured by the combination of time and productivity.
The absence of working hours control may be applied, therefore, only to employees in a telecommuting regime (predominant or not) who can perform their remote activities in the period that is most convenient for them, without the need to be available during a certain period (working hours).
- THE “ANYWHERE OFFICE” AND MOVING TO A DIFFERENT LOCATION FROM THE PLACE OF EMPLOYMENT AT THE EMPLOYEE’S INITIATIVE
MP 1,108 also deals with the problems generated by employees moving, on their own initiative, to different locations from where they were hired, since with remote work the place where the services are provided is no longer relevant for several issues. Let’s see:
Union affiliation: the collective agreement of the place of hiring must be applied.
As an example, if the employee is telecommuting from Rio de Janeiro (for his convenience), having been hired and registered in Belo Horizonte, the collective norms in effect in Belo Horizonte apply.
Moving abroad: if the employee was hired in Brazil and unilaterally chose to take up residence outside the country, Brazilian law will apply.
The hypothesis will not constitute an international transfer, having MP 1,108 expressly ruled out the application of Law n. 7,064/1982 (applicable to cases of removal of the employee abroad, assignment to a company based abroad or contracting in Brazil for work abroad).
The initiative and interest in moving abroad, in the hypothesis of PM 1,108 (“anywhere office”), is the employee’s, and in the hypothesis of Law n. 7,064 (international transfer) is from the company.
Expenses with return to on-site work: when returning to on-site work, the employer will not be responsible for the travel expenses added by the employee’s change of residence to a location other than the place of hiring.
- INTERNS AND APPRENTICES
MP 1,108 now expressly allows the adoption of telework/remote work for interns and apprentices.
- PRIORITIES
The vacancies for remote work must be offered as a priority to disabled employees and to those with children up to 4 (four) years of age
- VIGENCE
MP 1,108 came into force on March 28, 2022 for 60 days, and may be extended for the same period and converted into law after passing through Congress and the Senate.
This report is not exhaustive and does not represent or replace a specific recommendation about PM 1.108/2022. The DDSA’s labor team will be on hand to assess the specific situation.