Whether good or bad, fact is that one of the biggest legacies of the covid-19 pandemic was telework, and it definitely came to stay. Several companies have adopted the telework as a rule, allowing your employees to work from home or anywhere else that has a good internet connection.
What most of these companies do not see – and does not do so out of ignorance – is that the multiplicity of service locations leads to a multitude of places where their employees can process them. So, what was supposed to be a benefit can become a nightmare from a legal point of view.
Imagine a company with a nomadic employee, who over the course of a year travels the entire Brazilian coast, and at the end of the contract, decides to sue. Where will he distribute this action? And if the company has the entire staff of employees adept at the anywhere office, how can it promote the defense of its interests considering the continental size of our country?
In a first view – and considering the general rule that it is competent to judge a labor complaint the Labor court of the place where the employee provides his services – one might think that the options would be numerous, but recent decisions[1] of the courts addressing the issue of digital nomads have put this rule in check.
Given the multiplicity of places of service provision and the freedom granted to the employee, the courts have understood that the jurisdiction to adjudicate a labor complaint proposed by an adept collaborator of the anywhere office is the company's headquarters.
The reasons listed by the decisions revolve mostly around the right of defense of companies, which can be limited in case there is unpredictability about the place where the labor complaint will be proposed. In addition, the example of the agent or commercial traveler is "borrowed", since the nomadic employee can work in several locations, but without necessarily living in any of them.
We understand that some hiring precautions can help prevent a number of labor complaints related to supporters of the anywhere office:
Fixing the place of the company's headquarters as a competent forum to judge the labor lawsuit in the employment contract is one of them, even better if the worker in question has a higher education degree and receives a salary equal to or twice the maximum limit of the benefits of the General Social Security System.
The establishment of a remote work policy in which it is made clear that issues related to the employment contract will be discussed at the company's headquarters will also strengthen the arguments before the Labor Court in case there is discussion as to where a labor complaint should be handled.
There is an understanding that the place of discussion of labor demands cannot be determined by the employer and the employee for fear that may be impaired. It is the so-called "prohibition of the forumclause", that is, the impossibility of establishing this place in contract or otherwise. Thus, even if the necessary precautions were adopted, there would still be a risk of concluding that this adjustment did not exist.
However, we believe that the proposed measures will bring greater legal certainty to companies and, at the very least, facilitate the discussion of this issue in the courts, which need to adapt to new forms of work.
The adaptation of labor laws to new social phenomena is necessary, and the suggested measures seek precisely to combine the best of both worlds: grant the employee freedom of choice on where to work and, on the other hand, to give legal certainty to companies, who will be able to concentrate their demands on the place of their headquarters, without having to mobilize people and financial resources to meet labor complaints spread throughout a country as large as Brazil.
[1] RO: 0100647-28.2019.5.01.0246
RT: 1000924-87.2020.5.02.0009
RR: 0000426-03.2017.5.20.0012
