Uncertainty about the return to face-to-face work and the flexibility provided by remote work have popularized the anywhere office, an English term that designates the work done from anywhere.
In practice, the employee performs his activities wherever he wants, without limiting himself to his original home address. At his sole discretion, he can work from another city or even from another country.
Second research conducted by the McKinsey Global Institute, 50% of the executives interviewed believe that their companies will adopt, after the pandemic, models in which up to 50% of the work will be carried out remotely. Only 10% of executives believe that more than 80% of the work will be done in person.
In this context, more and more companies have adopted strategies to improve remote work, in order to make it more attractive, healthy and productive for employees, thus benefiting both parties (employee and employer). More and more people have also rethought the need to continue living in large metropolises and work only from one place.
This is the case, for example, of employees who are from the capital and choose to rent houses in land or on the coast for seasons, or who choose to work from various places for certain periods, renting apartments or houses for short periods.
However, as a result of the change in the employee's residence and depending on the place chosen, the anywhere office may characterize transfer. This is because, according to Article 469 of the Consolidation of Labor Laws (CLT), the change in the workplace that results in the change of domicile of the employee is considered transfer.
In this case, it is the company's responsibility to bear all the costs of change. In the event of a provisional transfer (characterized when the employee has the prospect of returning to the original place of service), an additional transfer equivalent to 25% of the employee's monthly salary will be due.[1]
Would the anywhere office then lead the payment of the costs of the moving and the additional transfer by the companies?
Labor legislation only provides for hypotheses in which the transfer takes place at the employer's initiative and not for the employee's exclusive interest. Accordingly, the case-law is that, when the transfer takes place at the request of the employee, the company is not obliged to pay the additional transfer.[2]
Therefore, in case of change of the place of provision of the services made by the employee, in its sole discretion, the additional transfer would not be due and the company would not be responsible for the costs arising from the change of the workplace. However, the theme is recent and may give different interpretations if the circumstances of the change in the workplace are not demonstrated in case of questioning.
Thus, for companies that want to enable the anywhere office, it is essential that the remote work policy establishes the procedures and conditions to be observed by the employee who, by his/her will, wishes to change his/her workplace.
In addition, by agreeing with the anywhere office, the company may not require the employee to return immediately from the place where he/she is providing the services. It will be necessary to grant a minimum period of 15 days for the employee to return to the original place, in addition to providing for this period and the conditions of return in the company's policy on the subject.
The formalization of the rules and the express record of the employee's choice (and not the determination of the employer) are the main arguments of the company to mitigate risks in case of legal questions related to payments arising from the change of the workplace.
[1] Jurisprudential Guidance No. 113 of the SDBI-1 of the Superior Labor Court (TST).
[2] RR-Ag: 0001567-88.2012.5.09.0028
RR-Ag: 0021680-38.2015.5.04.0015
RO: 0011580-72.2017.5.03.0147
