Law No. 14,442 of 2022, which regulates the rules for teleworking and meal allowances, is published – employee benefits and remuneration

Law No. 14,442 of 2022 was approved by the President of the Republic and published in the Official Gazette on September 5, 2022, with the aim of improving the teleworking system 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 derive from the legislative process resulting from Interim Measure No. 1.108 of 2022, bring important changes to the concept of telework and economic implications for the employer. On the other hand, the regulations on the subsistence allowance have already been applied and are helpful in completely dispelling doubts about the use of the funds.

The changes regarding telework can be broken down as follows:

a) Concept of telework regime and control of working hours

The concept of a telework system no longer requires the element of “predominance” as a necessary characteristic to recognize the provision of services in the telework system, and it is sufficient that the worker performs his function in a hybrid system to be covered by the regulations of Article 75-A of the Labor Code. This interpretation follows from the amendment of Article 75-B of the Labor Code.

The law also amended Article 62, III of the Labor Code by providing that workers performing their functions in a telework system are not exempt from the control of their working time, with the exception of workers providing post-task or production services.

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

Collective agreements and conventions are applied to workers in a telework system, taking into account the location of the entity for which they provide services.

In addition, the type of service provision in a teleworking or “hybrid” regime must be expressly stated in the individual employment contract.

c) The new telework regime for interns and trainees

With the insertion of paragraph 6 in Article 75-B, the regulation of telework can be extended to trainees and trainees, provided that this is expressly provided for in the traineeship contract, with the express consent of the trainee, the traineeship employer and the trainee’s training establishment.

d) Application of Brazilian legislation to workers providing services abroad under a labor regime

Brazilian law applies to workers subject to the telework regime who choose to provide their services abroad, unless the parties provide otherwise.

e) Expenses for the resumption of on-site work and the use of telematics means

The employer shall not be liable for the costs related to the return of employees in a telework system to the physical office, in the event that the employee chooses to provide his services in this system outside the contractually envisaged location, unless the parties agree otherwise agree.

The worker in the telework system who, outside of working hours, uses technological resources and the necessary infrastructure, software, digital tools or Internet applications for telework, does not mark standby or on-call times, unless a collective regulation provides otherwise.

f) Prioritizing the teleworking regime for workers with disabilities, workers with children or with children under judicial care

The law also provided that the employer must prioritize the introduction of the telework system for workers with disabilities, workers with children and workers with children under the age of four who are in custody.

The changes to the meal allowance are broken down as follows:

a) Necessity of the earmarked meal allowance for meals and the purchase of groceries

Article 2 of Law 14.442 of 2022 established, in a reassuring sense, that given the behaviors observed by employers, the meal allowance dealt with in Article 457, paragraph 2 of the Labor Code must be intended exclusively for the payment of food and meals.

b) Limits of the contract on the granting of meal allowance

The law also imposes restrictions when the employer hires a company to provide meal allowances, such as B.: prohibition of any kind of rebate or rebate from the contracted value; transfer or payment terms that remove the prepaid character of amounts to be made available to employees; other amounts and donations of any kind, direct or indirect, not directly related to the promotion of the health and food safety of the worker under the contracts concluded with the companies issuing instruments for the payment of food allowances

The concept of the telework regime no longer requires the fact of “predominance” as a necessary characteristic, so that for the recognition of the provision of services in the telework system it is sufficient that the employee performs his function in a hybrid regime to be recorded by the provisions of Article 75-A of the Labor Code. This interpretation follows from the amendment of Article 75-B of the Labor Code.

It is not yet known whether the application of the law will be similar to that of Law 13.467 of 2017 as applied to contracts in which the provision of services has already been made through the telework system, if the amendment is immediately complied with by those already in progress Contracts, if the application is limited to the effectiveness of the law, if employers have to pay overtime to employees who were already under this regulation, if the limitation is from the effectiveness of the law or retrospectively taking into account provisional Measure No. 1.108 of 2022 .

In short, it still seems premature to foresee the timely application of the law and its respective effects, but it must be noted that “tense regit actuam“, since all the changes introduced by Law No. 14,442 of 2022 are aimed at substantive law and not procedural law.