September 12, 2022

Law no. 14,442 of 2022, which regulates teleworking and meal allowance rules, is published

Law no. 14.442 of 2022 was sanctioned by the President of the Republic and published in the Official Gazette on September 5, 2022, with the purpose of regulating, by ordinary law, the teleworking regime and the payment of meal allowances and the Worker's Food Program (“PAT” in Portuguese).

The aspects of Law no. 14.442 of 2022, which originate from the legislative process resulting from Provisional Measure no. 1.108 of 2022, bring important changes to the concept of telework and economic impacts to the employer. On the other hand, the rules regarding meal allowances were already being applied and are useful to completely clear up the doubts surrounding the destination of the funds.

The changes regarding telecommuting can be broken down as follows:

a) Concept of telework regime and control of working hours

The concept of a teleworking regime no longer presupposes the element of "preponderance" as a necessary characteristic to have the recognition of the provision of services in the teleworking system, and it is enough that the employee performs his function in a hybrid regime to be covered by the provisions of article 75-A of the Labor Law. This interpretation comes from the change in article 75-B of the Labor Law.

The Law also amended article 62, III of the Labor Law, providing that those employees who perform their functions in a telecommuting regime are not exempted from having their working hourscontrolled, except for employees who provide services by task or production. 

b) Union affiliation and the need to expressly provide for the telecommuting regime in an individual employment contract

Collective agreements and conventions will be applied to employees in a telecommuting regime, considering the location of the establishment to which they provide services.

In addition, there is the need for the individual employment contract to expressly state the type of service provision in a telecommuting or "hybrid" regime.

c) The new telework regime for trainees and apprentices

With the insertion of paragraph 6 in article 75-B, the telework regime may be extended to interns and apprentices, provided that it is expressly included in the internship contract, with the express agreement of the intern, the internship grantor and the intern’s educational institution.

d) Application of Brazilian legislation to employees who provide services abroad under a work regime

Brazilian legislation is applicable to employees which are subject to the telecommuting regime and opts to provide his/her services abroad, unless the parties provide otherwise.

e) Expenses for the return to face-to-face work and the use of telematic resources

The employer will not be responsible for the expenses involving the return of employees in a telecommuting regime to the physical office, in the event that the employee opts to render his/her services in this regime outside the location in which the contract foresees, unless the parties agree otherwise.

The employee in the telecommuting regime using  technological resources and the necessary infrastructure, software, digital tools or internet applications for telecommuting, outside the working hours, does not characterize time on call or on standby regime, except if a collective rule provides otherwise.

f) Preference to the telecommuting regime for employees with disabilities, employees with children or with children under judicial guardianship

The legislation also provided that the employer must give preference to the adoption of the telecommuting system to employees with disabilities, employees with children and employees with children under judicial custody of up to four years of age.

The changes concerning the food allowance can be broken down as follows:

a) Necessity of earmarking food allowance for meals and the acquisition of food products 

Article 2 of Law 14.442 of 2022 in a pacifying sense, in light of the conducts that had been observed by employers, established that the food allowance dealt with in article 457, paragraph 2 of the Labor Law must be destined exclusively for the payment of food and meals.

b) Limits to the contract for provision of food allowance 

The law also established limitations when the employer hires a company for the supply of food allowance, such as: prohibition to any kind of discount or discount from the contracted value; terms of transfer or payment which deprive the prepaid nature of the amounts to be made available to the employees; other amounts and direct or indirect benefits of any nature not directly connected with the promotion of health and food safety of the employee, under the scope of the contracts entered into with the companies which issue instruments for the payment of food allowance

The concept of the telework regime no longer presupposes the element of "preponderance" as a necessary characteristic, so for the recognition of the provision of services in the telework system, it is enough that the employee performs his function in a hybrid regime to be covered by the provisions of article 75-A of the Labor Law. This interpretation comes from the amendment of article 75-B of the Labor Law.

It is not known yet if the application of the law will be similar to that of Law 13,467 of 2017, how it will be applied to contracts in which the rendering of services already occurred by the telecommuting regime, if compliance will be immediate with the modification of contracts that were already in progress, if the application will be limited to the effectiveness of the law, if employers must pay overtime to employees who were already in this regime, if the limitation will be from the effectiveness of the law or retroactively considering Provisional Measure no. 1,108 of 2022.

In short, to foresee the timely application of the law and its respective effects still seems premature, but it must be observed that "tempus regit actuam", since all the modifications brought by Law no. 14,442 of 2022 are intended to material law and not procedural law.

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