It is no novelty that the pandemic accelerated some processes that have already been part of the daily life of human relations, with undeniable reflexes on labor ties. As one of the main examples, the provision of services may be cited outside the dependencies of the employer which, due to the limitations imposed by the government bodies as a result of the pandemic (SARS-COV-2), was obliged to restrict access to the environment work until then frequented daily by employees.
However, it is important to establish distinctions between the modalities of work carried out outside the dependencies of the employer. The external work that dispenses the employee of the schedule registration, the Home Officeand the telecommuting, where we can in common the provision of services outside the company, have important nuances to be observed by of employers, especially with regard to rights and obligations relating to the working day.
for the characterization of external work provided for in item I of art. 62 of the CLT, which dispenses with the employer of registering the journeys of their employees and therefore the obligation to pay extra hours, it is essential that there is no incompatibility between the activity carried out and control of schedules. It is worth mentioning that, although the activities are carried out outside the dependencies of the company, in being possible to control the schedules fulfilled by the employee, the extra hours worked. Here it is worth mentioning that in the face of the numerous technological tools available these days (mobile applications, GPS, Login and Logoutetc. .), the possibilities of full incompatibility are restricted between the activity performed by the worker and the control of the journeys fulfilled.
already the home office (popularly known as "work at home"), where without corresponding nomenclature in labor legislation, is embraced by the disposal contained in art. 6 of CLT, which provides that "does not distinguish between the work carried out in the establishment of the employer, the executed at the employee's household and the distance (...)". Therefore, it is understood that the provisions that impose the employer to maintain the time record of their employees are fully applicable to those who play their home activities.
Finally, it deserves the telecommuting, provided for in the CLT from the 2017 Labor Reform, and often (mistakenly, to our feel) treated as synonymous with Home Office. It is that from reading the art. 75-B of CLT, it is verified that the telecommuting is defined as one in which the services are carried out "preponderantly outside the employer's dependencies, with the use of information and communication technologies which, by their nature, are not external work ". Of that device is inferred that telecommuting is differentiated from the Home Office because it does not necessarily be played at the worker's home (which is, for example, with activities performed in the so-called Coworkings < / in>). With regard to external work, telecommuting is different from the use of technologies that, in the thesis, allow the employer to control the workdays fulfilled in this modality.
In view of the CLT forecast that telecommuting removes the right to overtime, it is essential to identify the modality of work to which the employee is submitted. Otherwise, we left aside the peculiarities that differentiate external work, the Home Officeand telecommuting, the possibilities of labor liabilities related to working hours and their consections growing substantially.
CARPENA Lawyers is available to assist in the identification of risks and opportunities relating to matters, as well as in the resolution of doubts from this material.
