In recent weeks, movements of large companies, in Brazil and abroad, and, above all, about legal paths when a company decides to resume the face -to -face model.
These cases highlighted a central question again: How far does the employer’s power go and what are the limits imposed by labor law, both on teleworking and in a possible transition to the face -to -face?
In scenarios where there is still the option of maintaining home office, the discussion about productivity monitoring is particularly relevant. From a legal point of view, the basic principle is that the home cannot be invaded or impose forms of disproportionate surveillance. Control is allowed through login and logging systems, corporate software or equipment provided by the company, provided that the employee has a prior and express knowledge of these practices.
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Hidden monitoring is illegal. The requirement of continuously linked cameras also violates the privacy of the worker. Companies that choose this type of control should adopt clear and transparent policies, with formal science records and even training on ergonomics and good practices, otherwise relevant labor liabilities.
Regarding the transition from the remote to the face -to -face, the consolidation of labor laws gives the employer freedom to determine the return, provided that the legal requirements are observed. Article 75-C, paragraph second, provides for a minimum period of 15 days of transition and the formalization by contractual additive.
There is, however, an exception that deserves care. When the company establishes an internal teleworking policy, without caveats about the possibility of return, the principle of harmful contractual unalterability applies. This means that benefits spontaneously granted by the employer cannot be removed later, when there is no disposition to the contrary. In such cases, to revoke the policy, collective bargaining is required with the union.
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Similar situation occurs when the employee was hired from the outset in a remote regime. If he does not agree with the change, the company cannot impose face -to -face work, leaving, as alternatives, only the maintenance of teleworking or termination of the contract.
Another relevant aspect concerns the refusal to return to work. The CLT provides that the non -compliance with a lawful business order constitutes an act of indiscipline or insubordination. Thus, when the employer underlies his decision on the need for face -to -face work, based on contract, internal policy or collective agreement, unjustified refusal may even result in dismissal for just cause.
Although current legislation is clear at various points, some gaps remain that can generate conflicts, especially in individual situations, not provided for by law. This is the case, for example, of employees who moved to another country, city or state, during the pandemic, without informing their employers, or who need larger deadlines to reorganize their personal life, such as those who have children who study only half period. In these hypotheses, the practice has shown that common sense and individual negotiation are fundamental to avoid disputes.
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More than choosing between remote or face -to -face, the real challenge is to make any model a process of sustainable adaptation, capable of fairly balanced the interests and needs of companies and workers.
