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Brazilian labor courts not ready to deal with remote work

Remote work is here to stay in Brazil, but the legal implications of this could create uncertainty for employees and companies alike

The Brazilian economy is steadily reopening and returning to something closer to normality in the wake of the Covid-19 pandemic. That said, most companies are unlikely to ever return to their “default” working practices. As we explained in our July 20 Weekly Report, most Brazilian companies — even those that have returned to office activities — are set to keep some of their employees working from home permanently. At the very least, firms are likely to include remote work in a form of employee-rotation system to mitigate the risk of in-company coronavirus spreads.

While remote work has allowed thousands of companies to keep their activities ticking over in exceptional times — [restricted]and shown bosses that some processes are in fact more efficient when done out of the office — many studies suggest that working at home is taking its toll on the labor force. [restricted]When not in the office, some superiors have expected their employees to be available at all times, making workdays longer than usual. 

“People are joining more meetings, answering more unscheduled calls, and having to deal with more messages than before the pandemic,” read a Microsoft study published last week.

This scenario creates regulatory uncertainties, with potential future litigation between employees and companies in labor courts. Disconcertingly, Brazil’s Superior Labor Court (TST) appears to be unprepared for this possibility. The Brazilian Report asked the court if it has been sought out to handle cases related to remote work, or if it is preparing to arbitrate in such situations.

The TST simply replied that it has no information of the sort.

Remote work in Brazilian law

Brazil’s labor legislation has included provisions related to remote work since 2011, stating, for instance, that distance work activities are equatable to in-person employment for all necessary legal purposes. 

In the 2017 labor reform pushed through by then-President Michel Temer, remote work is defined as “the provision of services predominantly outside of the employer’s premises (…) which does not constitute external work.” These legal changes also blocked the possibility of overtime payments for those working from home.

As may be gleaned from these vague and perhaps contradictory definitions of remote work, labor courts are set to receive a wave of complaints basing themselves on holes or inconsistencies in Brazil’s telework regulations.

Not everyone can work from home

A recent study by the Anísio Teixeira Institute of Studies and Educational Research (Inep) shows that the nationwide shift toward remote work will not be a universal one, with research coordinator Geraldo Góes affirming that the results show the “reality of Brazilian inequality.” According to the study, working from home is an opportunity predominantly offered to more qualified and high-ranking workers, largely white women.

“Of course some jobs, such as farming or shop work, cannot be carried out remotely, but what we have clearly seen is that the higher the level of study or qualification, the more likely the person will remain working from home,” says Mr. Góes.

The prevalence of remote work also runs along state lines. “The larger the state’s income per capita, the more remote work there is,” the researcher explains. Indeed, the three states with the highest average incomes — the Federal District, São Paulo, and Rio de Janeiro — are also home to the most employees working from home.

This works in the opposite direction as well, with the northern state of Pará having among the lowest per capita incomes, and the lowest numbers of remote workers.[/restricted]

By Débora Álvares

Débora Álvares has worked as a political reporter for newspapers Folha de S.Paulo, O Estado de S.Paulo, Globo News, HuffPost, among others. She specializes in reporting on Brasilia, working behind-the-scenes coverage at the Executive, Legislative, and Judiciary branches of government.