Remote Work and Telework: An Employee’s Rights When Working From Home

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Telework and home office arrangements are governed by a dedicated chapter of Brazil’s Consolidation of Labor Laws, with rules that set the employer’s obligations for equipment, expense reimbursement, working-hours control, and protection of the worker’s health. Failing to follow these rules exposes the company to significant labor liabilities and puts employees at risk of losing rights because they do not know which regime applies to them.

The Regulatory Framework for Telework in Brazilian Labor Law

Telework received its own rules in Brazilian labor law with the Labor Reform introduced by Law 13.467 of 2017, which added Articles 75-A through 75-E to the Consolidation of Labor Laws. The regime is defined by work performed predominantly outside the employer’s premises, using information and communication technologies, and it does not, by itself, amount to the external work described in item I of Article 62 of the CLT (Brazil’s Consolidation of Labor Laws).

Law 14.442 of 2022 refined this framework by adding Article 75-F, which allows an employer to adopt telework by unilateral decision in extraordinary circumstances, such as a declared state of public calamity. It is important to distinguish telework as regulated by Chapter II-A of the CLT from remote work in the broader sense, a category that may include freelance, quasi-subordinate, and casual (avulso) workers, who are subject to different legal regimes.

For the regime to be valid, the individual employment contract or a contract addendum must specify the activities the employee will perform and the methods used to monitor output and quality. It must also state who is responsible for acquiring, maintaining, and providing the technological equipment and the necessary infrastructure, as Article 75-C of the CLT requires.

Costs of Equipment, Infrastructure, and Expense Reimbursement

One of the most litigated issues in telework is who pays for the tools of the job. Article 75-D of the CLT provides that the terms on responsibility for acquiring, maintaining, or providing equipment and the necessary infrastructure must be expressly stated in a written contract. When the contract says nothing, the prevailing view among legal scholars and in labor case law is that the employer must bear these costs, because the instruments of work are a burden borne by capital.

Expenses for electricity, internet connection, and phone service that relate directly to the work may be claimed back by the worker as reimbursement, unless the contract provides otherwise. The Superior Labor Court (Tribunal Superior do Trabalho) has recognized in several decisions the right to repayment of these expenses where the cost was shifted to the employee and a causal link was shown between the expense and the work performed.

A contract’s silence on infrastructure costs does not relieve the employer, because responsibility for the means of production does not pass to the worker merely because the company adopts a remote regime.

Collective bargaining agreements and conventions may set specific terms for providing equipment and reimbursing expenses, and they prevail over the statute when they are more favorable to the worker, under Article 611-A of the CLT. Where there is no collective agreement, the general rules apply, along with the principles of protection and the primacy of reality, which require the interpreter to consider the actual conditions under which the work is performed.

Working-Hours Control, Overtime, and Occupational Health in the Home Office

Article 62, item III, of the CLT, added by the 2017 Reform, excludes employees in telework from the chapter on working hours, which would, in principle, rule out overtime pay. That exclusion is not absolute, however. When the employer maintains effective control over when the workday starts and ends, through login systems, monitoring applications, or access logs, the Article 62 exclusion does not apply, and the worker becomes entitled to overtime pay.

The health and safety of the employee working from home is also a legal obligation of the employer. Article 75-E of the CLT requires the employer to instruct employees expressly and conspicuously on the precautions to take to avoid illness and workplace accidents, and the worker must sign a statement of responsibility. This instruction, however, does not shift to the employee the responsibility for occupational illnesses caused by inadequate conditions imposed by the company, such as unsuitable furniture, poor lighting, or a lack of scheduled breaks.

Conditions such as repetitive strain injury, burnout syndrome, and anxiety disorders related to remote work may be recognized as occupational illnesses when a causal link is shown to the conditions imposed by the employer. Recognition can give rise to temporary job security, payment for treatment through the company health plan, and compensation for material and moral damages, under Article 118 of Law 8.213 of 1991, read together with Article 927 of the Civil Code.

Frequently Asked Questions

Is an employee in telework entitled to overtime pay?

It depends on how much control the employer exercises over working hours. When the company monitors access times, requires availability during fixed windows, or records the start and end of the workday by any means, the worker falls outside the exclusion in Article 62, item III, of the CLT and is entitled to overtime pay of at least fifty percent above the regular hourly rate, under Article 7, item XVI, of the Federal Constitution. The lack of formal time tracking is not enough to defeat the right when, in practice, the employer imposes a work schedule.

Who must pay for equipment and internet service in a home office?

Responsibility must be set out in a written contract, as Article 75-D of the CLT requires. When the contract is silent, the prevailing scholarly view and labor case law hold that the employer must bear the costs, because the instruments of production are a burden borne by capital and cannot be shifted unilaterally to the worker. An employee who pays for equipment and connectivity without a contractual provision may seek reimbursement, as long as the employee can document the expenses and show their connection to the work performed.

Can a company switch an employee from on-site work to telework without the employee’s consent?

As a rule, converting from on-site work to telework requires mutual agreement formalized in a contract addendum, under Article 75-C of the CLT. A unilateral change by the employer is prohibited by Article 468 of the CLT, which bars contract changes that harm the worker without the worker’s consent. Only in exceptional situations, such as those covered by Law 14.442 of 2022, may the employer adopt telework unilaterally and on a temporary basis. Even then, the employer must give the employee at least fifteen days’ notice and ensure the material conditions needed to carry out the work.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.