Since the Consolidated Labor Laws (CLT) entered into force, the chapter on working hours, in particular the limitation of working hours to eight hours per day and the payment of overtime, has included exceptions provided for in article 62 of the same law.

The articles on the subject are not new, but the discussions in legal scholarship and case continue to be heated, especially since the emergence of the internet and the evolution of technology.

The main criterion used in some labor court rulings to rule out falling within the exception provided for in article 62, subsection I, is the existence of direct or indirect means of monitoring the employee's working hours.

The mere possibility of supervision, even if it is not practiced, is considered sufficient by some courts to justify finding absence of off-site working hours. The understanding is based on the fact that the article of the law stipulates that off-site activity must be incompatible with fixed working hours.

Although it is necessary to analyze the body of evidence on a case-by-case basis in order to assess all the elements and grounds for persuasion, article 62, subsection I, of the CLT does not stipulate that the mere provision of telematic devices, such as a corporate telephone or iPad, disqualifies the classification in the exception in question.

This is because the wording of subsection I, despite having undergone changes over the years, continues to provide that the conditions that qualify the employee in the legal scenario mentioned would be:

  • exercise of off-site activity incompatible with the establishment of working hours; and
  • annotation of this condition in the Work and Social Security Ledger (CTPS).

Considering the wording used by the legislator, what establishes a true off-site employee is not the mere possibility of supervision by the employer, but the determination that work hours be carried out within a defined timetable.

With the advance of telematic means, there is always the possibility of controlling an employee's working hours. However, if the employer does not do this, i.e. does not set working hours for off-site workers to carry out their activities, the case of article 62, I, of the CLT applies.

Any understanding other than this represents usurpation of jurisdiction, making the exception in the article mentioned “dead letter law".

What really needs to be assessed in order to apply the rule to reality is whether the employer can order the employee to work within a specific period of hours. It must also be assessed whether it will be possible to accurately ascertain whether employees carried out their work activities within those working hours.

As explained by Judge Ricardo Apostólico Silva of the 13th Panel of the Regional Court of Labor Appeals of São Paulo (2nd Region) when deciding a case brought by a sales representative for the pharmaceutical industry, "it is not enough to know the time at which the worker performed the first and last services of the day; it must be possible for the employer to know and control how the worker spent his time throughout the day. On the other hand, those who work off-site may, in theory, invest part of the time between the start and end of the work day to resolve private issues, which obviously does not give rise to the right to compensation."[1]

With this in mind, we believe that the way to try to avoid judgments for overtime due to misapplication of the exception to off-site working hours provided for in article 62, subsection I, of the CLT is to look for alternatives to recognize the exception. The issue should also continue to be taken to the Superior Labor Court (TST) in order to standardize case law and bring it into line with current reality.

The first alternative to avoid a judgment is to increasingly adapt field practices to demonstrate the autonomy and flexibility of off-site workers, presenting proof that the telematic instruments, including the systems installed in them, are intended for organizing day-to-day work and not for controlling/interfering with working hours.

Drawing up notarial minutes with screenshots of the system, with the information that must be filled in and a demonstration of what information the managers have access to (as little as possible - only what is essential to validate the work done), has also proved to be a valuable resource in lawsuits.

Another option that has become more effective since June of 2022, with the judgment of Topic 1,046, by the Federal Supreme Court (STF), is the provision in a collective bargaining agreement that employees of a certain category or company who carry out off-site work are not subject to receiving overtime under the terms of article 62, subsection I, of the CLT.

With the STF holding that “collective bargaining agreements which, taking into account the negotiated sectoral adequacy, agree to limitations or withdrawals of labor rights, regardless of the specific explanation of compensatory advantages, provided that absolutely inalienable rights are respected, are constitutional", the validity of this type of clause has gained strength in the Labor Courts.

Along these lines is the opinion drafted by Justice Alexandre Luiz Ramos of the 4th Panel of the TST in case 0001128-95.2017.5.17.0152 and that of Justice Breno Medeiros of the 5th Panel in case 0020364-97.2018.5.04.0010. Both recognize that a provision in a collective bargaining agreement for the applicability of the exception in article 62, subsection I, of the CLT does not constitute an unlawful purpose or an inalienable right.

As Justice Breno Medeiros noted in his ruling, failure to recognize the validity of this provision represents a violation of article 7, subsection XXVI, of the Federal Constitution.

These decisions reinforce the understanding of validating a clause that for years has been included in various collective bargaining agreements for employees in off-site categories, such as sales reps in commerce and industry in general, including the pharmaceutical industry. They bring the hope of complete and correct practical applicability of article 62, subsection I, of the CLT, which, unfortunately, since the emergence of geolocation systems such as GPS, has been weakened.

Therefore, until the TST defines the real concept of off-site working hours, the only thing left to do is for companies to adapt their defense arguments and their management practices for employees belonging to this category. Organizations should also strive to defend the autonomy of the collective will, to strengthen the validity of the exception and avoid unlawful judgments, especially in cases where the collective standard already provides for the application of article 62, subsection I, of the CLT.

 

[1] Case 1001663-90.2019.5.02.0463 – published on August 21, 2023