CHANGES TO REMOTE WORK RULES AND REGULATION OF THE HYBRID MODEL

Leila Pigozzi Alves and Ana Carolina Silva

De Luca, Derenusson, Schuttoff Advogados

On March 28, 2022, the Federal Government enacted Provisional Presidential Decree No. 1,108 (“MP 1,108”), which, among other matters, amends the law on remote work. 

Due to these amendments, and also to the extension of the already existing regulations on telecommuting to the hybrid model, companies that had already implemented these policies shall reevaluate their practices in view of the new rules. 

Below are the most interesting topics of MP 1,108/2022:

REGULATION OF THE HYBRID WORKING MODEL 

Telecommuting (or the so-called “home office”) had already been included in the Consolidation of Labor Laws (CLT), which defined telecommuting as the provision of services mainly outside the premises of the employer, with the use of information and communication technologies that, due to their nature, were not considered external work. Therefore, it did not cover some forms of hybrid work.

However, with the amendments introduced by MP 1,108, the Chapter of the CLT on telecommuting became also applicable to the so-called “hybrid model”, in which the days of work outside the establishment of the employer alternate with days of remote work, even if the remote work is not predominant. 

Thus, the following rules now also apply to the hybrid model: 

Requirement of a written contract: due to the extension of the telecommuting rules to the hybrid model, a written contract is required for implementation thereof, as previously recommended. 

Change in and Cancellation of the hybrid model: conditional upon mutual agreement between the parties, formalized by means of an amendment to the employment contract. It may also be unilaterally determined by the employer, provided that a previous notice of at least 15 days is given for adaptation and that this possibility is contractually provided. 

Equipment and expenses: the rules relating to the purchase and maintenance of the equipment and infrastructure required for the hybrid working model must be set forth in a written contract. 

Occupational safety and health: the employer shall instruct its employees about the issues regarding occupational health and safety on remote work. Employees who work in the hybrid model shall also sign an instrument of liability, agreeing to comply with the instructions provided by the employer, as already required for preponderantly remote work.

In addition to the regulation of hybrid work by the rules then existing in the CLT for purely remote work only, MP 1,108 has also created new rules, applying to both models

EXCLUSION OF THE CONTROL OF HOURS OF WORK AND OF THE RIGHT TO OVERTIME PAYMENT ONLY FOR WORK BY TASK OR PRODUCTION

MP 1,108 expressly provides that employees may work in the remote model regardless if they work per hours of work or per production/task. However, they will only be exempted from overtime control on the second case (and consequently, from the right to overtime). 

The hiring per production or task is not addressed specifically by the CLT. However, it is construed by case law as a modality of employment relationship in which the remuneration is not paid for time available (hours of work), but for what is produced by the employee. Thus, the salary of the employees is calculated by the combination of time and productivity. 

Therefore, the exemption from working hours control applies only to those employees who may engage in their remote activities without the need to be available during a certain period of time or amount of hours.

THE “ANYWHERE OFFICE” AND THE MOVING TO A DIFFERENT LOCATION FROM THAT OF THE ADMISSION AT THE INITIATIVE OF THE EMPLOYEE

MP 1,108 also aims to fix problems caused by employees who moved, at their own initiative, to other places than that of their admission, as the place where services are provided is no longer relevant in various aspects. As a consequence: 

Union classification: the collective bargaining arrangement of the place of admission is the one applying to the employment relationship. 

For example, if an employee is working remotely from Rio de Janeiro (at his/her convenience), and the employment contract has been entered into and registered in Belo Horizonte, the collective rules in effect in Belo Horizonte shall apply.

Employees who move abroad: if an employee has been admitted in Brazil and has unilaterally chosen to live outside the Brazilian territory, the Brazilian Law shall apply.

The event shall not represent international transfer, and MP 1,108 expressly denies submission to Law No. 7.064/1982 (which applies to the events of transfer of employees abroad, assignment to a company headquartered abroad or admission in Brazil to work abroad). 

The initiative and interest in moving abroad, in the case of MP 1,108 (“anywhere office”), is of the employee, and in the case of Law No. 7.064 (international transfer), is at the company. 

Expenses with the return to the office: upon return of the employee to the employer’s premises, employer shall not be liable for the commuting expenses increased by the moving of employee’s residence to a different location then the one of his/her admission.

TRAINEES AND APPRENTICES

MP 1,108 expressly allows trainees and apprentices to work remotely.

PRIORITIES

Employees with disabilities or with children up to 4 (four) years of age shall be given priority for remote job positions. 

EFFECTIVENESS

MP 1,108 took effect on March 28, 2022 for 60 days and may be extended for the same period and converted into Law after analysis by the Brazilian Congress and Senate.

This newsletter is not exhaustive, and neither represents nor substitutes a specific recommendation on MP 1,108/2022. DDSA’s labor team will be available to evaluate every specific situation.

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