Executive Order No. 1,108, published on March 28, substantially modified the rules on teleworking established by the Brazilian Consolidated Labor Laws (CLT).

Among the main changes, we highlight the following:

  • Equivalence between home office and teleworking

Remote work performed not predominantly outside the employer's premises (home-office) is now considered equivalent to teleworking / remote work: from now on, the provision of services outside the employer's premises, whether or not predominantly, with the use of information and communication technologies, which, by their nature, do not themselves qualify as external work, are characterized as a teleworking or remote working arrangement; teleworking and remote work are now equivalent for all purposes.

  • Tracking of working hours

From now on, only teleworking employees who provide services by production or tasks (i.e., employee who are paid based on production/tasks) are exempt from tracking working hours. In other words, employers with more than 20 employees must track the working hours of all employees who are not exempt, including of employees working in a teleworking arrangement who were not hired by production/tasks.

  • Contractual provision

The provision of services in the form of teleworking must be expressly established in the individual employment agreement: due to the equivalence between a home office arrangement and teleworking, a home office arrangement must now also be regulated by individual agreement or internal policies with individual assent by employees.

  • Interns and apprentices

Adoption of a teleworking arrangement for interns and apprentices is now expressly allowed: here, the law has reached what already happens in practice.

  • Union framework

Employees in a teleworking arrangement are subject to the provisions established in local legislation and in collective bargaining agreements applicable to the territorial basis of the employer’s establishment to which the employee is registered: with this, the executive order now expressly provides that, when the location where services are provided is not relevant, labor union representation follows the location of the employer's establishment, in line with the understanding of Brazilian case law.

  • Teleworking abroad

Brazilian laws apply to employment agreements of employees hired in Brazil who choose to work remotely outside Brazil, except for the provisions of Law 7,064/82, unless otherwise agreed upon by the parties: with this, the executive order minimizes the risk of international remote work constituting international temporary transfers, preventing potential disputes involving this matter.

The executive order also brought in some clarifications on teleworking:

  • attendance, even if habitually, at the employer's premises to carry out specific activities, which require presence at the workplace, does not denature the teleworking arrangement.
  • employees subject to a teleworking arrangement may provide services per hour (hourly or monthly), per production, or per task.
  • individual agreements may provide for timetables and means of communication between employee and employer, as long as legal rest periods are ensured.
  • employers must give priority to employees with disabilities and employees with children up to four years of age in the allocation of teleworking or remote work.
  • the employer will not be responsible for expenses resulting from return to on site work if the employee has chosen to work remotely outside the location established in the agreement, unless otherwise agreed upon between the parties.
  • time spent using technological equipment and the necessary infrastructure, and software, digital tools, or internet applications used for teleworking, outside the employee's regular working day, does not constitute time available to the employers, time as standby, or time on-call, unless there is a provision in an individual agreement or in a collective bargaining agreement: for teleworking activities that require employees to be on standby or on-call, it would be possible to agree on payment of amounts without denaturing the teleworking arrangement and exceptions from tracking of working hours of employees who work by production/task.
  • a teleworking arrangement is not the same as or equivalent to occupation of a call center or work as a telemarketing operator.

Although the executive order produces legal effects from the date of its publication, its transformation into law requires approval by the Brazilian Congress.

Due to the substantial changes introduced by the executive order, companies that have already implemented teleworking, home office, or remote work policies must reassess and adjust their practices to adapt them to the new rules.

Employers' obligations under the executive order will lose their effect if the executive order is not converted into law. Contractual agreements made during the term of the executive order will be effective beyond termination thereof.

Machado Meyer Advogados will continue monitoring the evolution of the matter and potential developments thereunder.