Nomadic Work in Brazil and Abroad
Only 4 years after the labor law reform which explicitly included teleworking in the Brazilian Consolidated Labor Laws (CLT), Provisional Measure No. 1,108, dated March 25, 2022, introduced significant innovations in both teleworking and remote work, which are referred to in Brazil as "home office" or even "nomadic working", as it has also been called.
The first major change concerns teleworking, as it is now regulated by CLT together with remote work, that is, as a way of performing work-related activities outside the employer’s premises, whether preponderantly or not. In other words, it no longer matters if the employee will spend 3, 2, or just 1 day a week out of the traditional workplace (in "home office"), nor if the in-person commitments in the company will be recurrent (meetings, trainings, etc.) in a way that could require spending more days working from inside the office instead of at home, or vice-versa. In all of these cases, provisions of the CLT on the subject will be suitable from now on.
In this regard, CLT now explicitly provides that the Brazilian legislation shall be applied to workers under the “home office” system, whether they are located in Brazil or abroad, except for the applicable provisions of the expatriate legislation (which states that a more beneficial conditions to the employee should be applied, for example).
It is also clear now that the applicable Collective Bargaining Agreements (CBAs) will be those negotiated in relation to the location of the employer’s premises to which the employee is linked, and it can be the company's headquarters or a nearby branch. The matter of CBAs applicable is quite relevant due to the broad legal effects it brings to the individual employment relationships, and it will definitely lead to a complex debate.
Another key point that had been causing an intensive discussion concerns the return expenses of the employee, who decided to move to another location of residence far away from the place originally set for work in order to benefit from the flexibility that the "home office" system provides, as well as from the measures adopted against the pandemic that resulted in the employee's total absence from the company's premises. The pandemic scenario has changed, and these discussions have become more frequent, often dealing with transportation expenses from the employee's further residence location to the workplace.
However, the most impacting change in the legislation concerns the control of working hours and the eventual payment of overtime to employees under the “home office” system. The existing exception for teleworking, which had put these employees under the same situation as those in management positions and outdoors workers were made in such sense to exclude them from the controlled working hours system and overtime payment, which is now restricted to teleworkers or remote workers who work by task or production.
Every employee who works in shifts, that is, for a certain number of daily working hours, must work under a pre-defined work hours regime and control system, and they must also be entitled to overtime payment, and, in order to accomplish this, they may adopt technological tools for overseeing the workflow, even when it comes to remote work. This is a highly delicate topic that brings a full set of legal questions and many case-by-case specificities.
Finally, legislation now requires that workers with disabilities and employees who have children up to 4 years of age to be prioritized when allocating available “home office” jobs.
Since these provisions derive from a provisional measure, they may undergo changes once they go through intensive debate in the Brazilian National Congress, but it is indisputable that these changes are profound and that they will have broad legal impact from now on.
Given all these innovations in mind, we believe that the best way to proceed is to establish clear provisions for “home office” contract-based policies, which is what we had already suggested in an article of July 2021 (https://corelaw.com.br/custos-em-home-office-quem-deve-pagar/).
Our firm, by using Corelaw methodology, is ready and available to help your company find answers and legally structured solutions, in the field of Corporate Labor Law, to challenges your business is facing right now.
