Aref Al-Sarwi: A chapter after observing remote work

reports recently published Showcasing an event that took place in Australia whereby an employee was fired, with good reason, after he was caught on a platform using keystroke counting technology. This means that through it it will be possible to find out how long the worker could have been carrying out his activities on the computer where he is performing his duties.

To prove that there was genuine negligence on the part of the worker, in light of the reports obtained by the platform, it was shown that the activities of the professionals were far less than the minimum number of keyboard operators sufficient to perform their duties. The two Australian courts ruled in favor of the company.

But how will this platform be implemented in Brazil?
Remote work was included in the legislation only with the enactment of the so-called labor reform, which added a rule to the text of Law No. 13467/2017, and was later improved by Law 14442/2022, culminating in the current rules of Clause III, Article 62 and Articles 75-A to 75-F, all criminal law codes.

The legislation provided for the development of activities in remote work by day, production or task, specifically in Article 75-b, Paragraph 2 of the Laws and Legislations Act. In the case of activities by production or task, the worker is not subject to the control of working hours, hence the rule of Article 62, Section Three, Commercial Law Code, which excludes the methodologies for regulating Title Two, Chapter Two, of the Labor Law, as explicitly repeated in Article 75 -B-§3, Joint Budgeting Act.

However, with regard to remote work per day, where the employer continues to retain control and supervision powers in the performance of the work day set by the employee, including determining the monthly workload, the issue is not simple and has been subject to debate in the courts.

This is because, despite the argument that advances in technology allow the exercise of remote control and oversight of working hours by the employer, care must be taken in its application in order to protect employee privacy.

For example, the jurisprudence refused to use cameras connected to the worker’s computer in his workplace, because it encroaches on the employee’s privacy, often revealing pictures of his daily life or of his families that generate such an invasion. However, meetings or even activations by computer or via telephony or even phone calls are permitted, logically always during the contracted workday, including observing meal and rest times.

It should be noted that the agreement on remote work, as well as the renegotiation of remote work, with the transition from face-to-face to that, or vice versa, requires the implementation of a contractual amendment that regulates job status, means of journey development, and other contractual characteristics. Sections 75-B, §9 and 75-C, both of the Code of Laws and Statutes.

Bringing this legal reality to the realistic situation that motivates this study, that is, the reality discussed in Australia, wants to show that the use of a platform that monitors the number of keystrokes, if the worker is alerted to their presence and use, because providing the express use of the same in the contract or contractual appendix To work between the two parties, it will not violate the rights of the worker, because the condition for developing activities will be within their contracted jobs and within the agreed day.

However, it should be noted that using the platform to monitor activities cannot serve as a pressure tool to increase goals or even competition among employees in the same role.

The technology to be implemented must allow the business owner to control the working day remotely, and ensure that activities are carried out, while avoiding practices such as sign in Persistent or even enforcing a minimum number of keystrokes per day, which could prevent the employee from going for a snack or a bathroom break while working, or even prevent the use of the break during the workday.

It is necessary to pay attention to the form of inspection to be adopted so that the monitoring does not lead to objectives already rejected by labor law, for example, objectives related to pressing keys that could prevent adequate breaks, or even a minimum time during which the login is made or done. Reducing it to carry out certain tasks that can generate excessive stress.

Therefore, it is essential that the chosen form of control not only ensures the effectiveness of remote work, but also respects the rights and privacy of employees, as well as compliance with the guidelines established by labor jurisprudence.

The platform should be used objectively and only to see if the employee fulfills his contractual obligations, that is, performs his duties, a requirement that the employer can also impose on face-to-face work.

On the other hand, as the case is quite new and controversial, and also because of the labor court’s protectionist tradition, with sometimes exaggerated emphasis on the principle of in dubio pro misero, It is also possible to understand that the use of the platform, in addition to invading the worker’s privacy, generates excessive pressure to increase and monitor performance and production during the working day, which generates anxiety and often moral or existential harm to the employee.

With this, the participation of the Federation, in a collective agreement or agreement, that allows the use of this type of platform, in addition to establishing clear rules and objectives for the use of the tool, would be prudent and highly recommended to legitimize the application of the technology.