New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Remote-working has been formally incorporated into the Brazilian Consolidated Labour Statutes (CLT) after the enactment of the Labour Overhaul (in November 2017) – until then, the law was silent on the rules on and impacts of such an arrangement, and it was up to employers to set their own policies. In a nutshell, the law sets forth that (i) the employment contract (or amendment thereof) should govern the acquisition, provision and maintenance of technological equipment and infrastructure, and payment of any allowance or reimbursement of expenses; and (ii) employers must give express guidelines on ergonomics for employees to observe at home – and employees must sign a term acknowledging that they are aware of such guidelines. Because Brazilian labour legislation is silent on so many points regarding remote working, the Labour Public Prosecutor has set certain additional guidelines to help companies during the pandemic, as many of them have shifted to a remote model (eg, reinforcing digital ethics and highlighting that employees should receive proper technical support). All such laws and guidelines apply to employees only, meaning that independent contractors or other non-employment models are excluded.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, many states have passed laws that recognise remote-working arrangements. This includes laws concerning employee reimbursement of costs relating to remote work, workers’ compensation, tax, timekeeping and meal breaks, data privacy, and providing accommodation.  Because companies may be legally considered to be employers or “co-employers” of consultants and contractors, these rules may also apply to non-employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

In a remote-working environment, employees are more likely to use their personal devices and Wi-Fi and might share their workspace with family members or roommates. In addition, employees are more prone to mix personal and work-related data. These may lead not only to potential issues involving one’s privacy but also cyber threats and data leakage. Therefore, employers are strongly advised to implement strict policies on remote working, use of personal devices and data storage, as well as to provide the appropriate training.  

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Data privacy rules vary from state to state. Remote work, in particular, raises issues where employers have less control over the working environment and employees are potentially accessing sensitive information in their home that they share with others.  Employers should ensure that employees working remotely can demonstrate that their location provides sufficient privacy, security, and safety to secure the confidentiality of the employee’s work, company information and materials.  Additionally, health-related data must be protected and employers should be required to protect trade secrets and other confidential data. Employers must also maintain reasonable security measures to protect sensitive personally identifying information. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Rules on employers’ ability to monitor employees’ activity tend not to vary from a regular to a remote-working arrangement – but rather depend on “who owns the device”. As a general rule, whenever companies grant electronic devices to employees for work purposes, the content and all data stored in such equipment belong to the company, as they are considered “work tools”. This means that there is no expectation of privacy – provided that employees are informed on such monitoring in advance. In the case of personal devices, it may ultimately lead to certain ambiguity as to employers’ right to have access or monitor activity because of the existence of both professional and personal information. If that is the case, monitoring should be limited to work-related information, apps and files, ensuring, as much as possible, that personal data is preserved and there is no violation of privacy.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Monitoring and surveillance laws vary from state to state, and there are also, potentially, tort and criminal laws regarding invasion of privacy that must be considered where the employee has an expectation of privacy.  While audio or key-stroke monitoring may be minimally intrusive, video surveillance is almost always problematic. Some states require only one-party consent for audio monitoring, but others require that all the parties to a conversation consent to such monitoring.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are not required to provide work equipment in a remote-working arrangement. The CLT simply establishes that the contract governing that arrangement should be specific as to the provision of any equipment or reimbursement of expenses – if any. Notwithstanding the scant case law addressing this, precedents are inclined to understanding that companies should provide the minimum work tools needed for the rendering of services, eg, a computer and reimburse costs for the internet and power. If the company demands excessive accommodations or adaptations at employees’ homes, notably when those imply costs, employees may challenge the company’s policies and demand reimbursement – and labour courts would likely hold the employer liable for supporting the costs with excessive requests.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

There is a patchwork of various state laws, either by judicial decision or statute, affecting expense reimbursement, particularly in instances involving mandatory remote work as opposed to remote work requested by the employee. Ascertaining expense reimbursement obligations is one of the most challenging aspects of implementing a compliant teleworking arrangement. Some states do not require reimbursement of work equipment, internet, etc, while others, such as California, do require reimbursement of “all necessary expenditures.”

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Although cross-border remote-working arrangements have become increasingly popular – especially during the pandemic –, up to now there is no specific rule in the Brazilian migratory or labour legislation governing that scenario. From a labour perspective, there is no clarity as to whether employees transferred to work abroad on a remote-working model would still be covered by Brazilian legislation and thus entitled to Brazilian rights and benefits, or by that of the country where they have been transferred to. From a tax and social security perspectives, it is necessary to identify if the workers are deemed as tax residents in Brazil in order to determine the correct taxation on compensation amounts paid in Brazil / by a Brazilian source or paid abroad. There are also potential mechanisms to avoid double taxation on income in International Treaties. Furthermore, there are international agreements specifically for social security purposes, which, under certain situations, prevent Brazilian companies from having to collect social security charges.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Employees who cross state borders trigger a host of risks for their employer. The obligations of the jurisdiction where the work is performed will generally prevail (depending upon duration).  For example, state law, and even municipal law, control employers’ leave obligations (such as time off to vote, paid family leave, or paid sick leave).  With paid sick leave, this can become very complicated, as each law has different tracking, recordkeeping and accrual requirements. In addition, state withholdings and income tax, as well as insurance (workers compensation), must be considered.  Local ordinances often also control wage-and-hour issues such as how and when an employee must be paid, pay-statement requirements, whether an exemption applies or overtime must be paid, and other nuanced areas such as required employer policies, or notices relating to wages or unemployment insurance.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers cannot reduce the salaries or benefits of employees solely because they work remotely. Note that the federal government has introduced certain measures to help companies survive through the pandemic and avoid layoffs (eg, reducing employees’ working hours and salaries, suspending employment contracts temporarily, remote working (with fewer requirements than those set forth by the CLT), and delaying the collection of certain labour charges). These alternatives apply to all employees regardless of their work arrangement (ie, remote workers or not). Therefore, it may be the case that employees were shifted to a remote model and have had their working hours and salaries reduced. Other than that, salary reductions would depend on prior negotiation with the applicable union.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Most jurisdictions in the US have at-will employment, so that with appropriate advance notice, salaries and benefits of at-will employees can be reduced without issue (ie, assuming no contract and the pay does not fall below the threshold for minimum wage or to maintain any particular exemption).  However, as with any workplace policy, the law mandates that selection for wage reduction be without regard to protected status such as race, age or disability. Thus, there may be an exposure to risk of claims to the extent that those who work remotely are seeking an accommodation or there is a potential for disparate impact.  Thus, employers should ensure that there is no "disparate impact" on any protected status that is required to work remotely.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

This is still a very controversial matter in Brazil. Recent decisions issued by the Supreme Federal Court have recognised the constitutionality of mandatory vaccination on a federal, state and municipal level in the public system (through the adoption of indirect measures). That being said, it may be possible to apply the same rationale to private work relations. This is mainly because, under Brazilian Law, employers must ensure a safe and healthy work environment that encompasses, for instance, the adoption of preventive measures to tackle covid-19 – including, in a broad interpretation, the vaccine. If on one hand employers must ensure a healthy and safe workplace, then on the other employees must comply with company rules in that regard and cooperate with the company in the implementation of such measures. Thus, considering the Supreme Court’s recent decisions regarding compulsory vaccination and laws on health and safety in the workplace, we understand that there may be some arguments to defend disciplinary measures, even termination of employment with cause, if employees refuse to get vaccinated without a medical justification. This possibility has also been considered enforceable by the Labour Public Prosecutor when publishing certain technical guidelines in January 2021. However, the president of the Superior Labour Court has informally indicated that termination with cause should not be applied in the event of refusal – whereas other justices of the Superior Labour Court have agreed with such a measure. Therefore, there is still no consensus as no decision on this matter has been issued so far by the labour courts. In any case, the following recommendations would apply: the adoption of preventive measures such as educational campaigns about the importance of vaccination and the legal implications of an unjustified refusal; and to evaluate the possibility of terminating an employee with cause on a case-by-case basis. In such an instance, the following will be considered: the reasons for the employee’s refusal; if the employee is under any type of job protection; if the applicable collective bargaining agreement provides for something specific in that regard; if the employee can be moved to a work-from-home arrangement; and if there is any court decision regarding the matter when such termination is planned to occur.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability.  Another option is to consider having employees show vaccination proof or submit to weekly covid-19 testing, wear masks, and keep physically distant from other workers and visitors.  Employers can also encourage and incentivise employees to get vaccinated by offering prizes, developing vaccination education campaigns, offering vaccinations on-site, covering any costs that might be associated with getting the vaccine, or providing paid time off for employees to get the vaccine and recover from any potential side effects. However, state lawmakers have introduced dozens of legislative proposals to make it harder for employers to require that employees get a covid-19 vaccine.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Considering by analogy the Supreme Federal Court’s decision on the possibility of federal, state and municipal authorities imposing restrictive measures for citizens who refuse vaccination and health and safety rules in the workplace, we understand that there may be grounds to defend a policy allowing only employees who have been vaccinated to access the office, as long as those who are not vaccinated can still work from home without major consequences (such as termination). That being said, the main risk would be having those employees who have not received a covid-19 vaccination argue that they have been discriminated against and claim for an award of damages for pain and suffering – especially if they are subject to discipline (including termination).

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

While federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for covid-19, accommodations must be made for those with religious objections or a disability through alternative measures. Those can include getting tested weekly or working remotely.  In addition, state law is rapidly evolving in this area and we have seen a steady increase in worker lawsuits that are filed on the basis that treating unvaccinated people differently is discriminatory or unlawful. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

On a state level, some specific sectors considered “essential” (meaning that they continued to operate normally – or were hardly affected – especially at the beginning of the pandemic) had their vaccination schedules prioritised, by the state government, over the rest of the population (eg, health professionals, public transportation drivers and teachers). In spite of that, proof of actual vaccination was not a requirement for individuals in these sectors to keep working during the pandemic.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Yes, this includes the healthcare industry, as well as some federal and municipal agencies.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

There are two main concerns when dealing with the processing of employees’ medical and vaccination information. The first one relates to the processing itself: under the Brazilian General Data Protection Law, the legal basis for processing that information would be either “protection of life” (eg, a safe and healthy workplace) or “compliance with the law or regulatory rules” to the extent that employers have the legal duty to promote a safe and healthy workplace. Moreover, companies are advised to keep access to information concerning one’s health as limited as possible and for as long as that information is useful (ie, for a determined period). Companies should also collect that sort of information in an anonymous form to mitigate risks in connection with violation of privacy (eg, an unauthorised person who has access to that information). The second one concerns employers’ ability to enquire on an employee’s vaccination status: there is still no consensus as to the legality of such a practice; however, taking into account employers’ general obligation to ensure a safe and healthy workplace and that labour courts and the Labour Public Prosecutor have considered termination of employees who refused to get vaccinated valid, we understand that there would be grounds to support the legality of ascertaining employees’ medical and vaccination information.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

With limited exceptions, the Americans with Disabilities Act requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatment, but also the fact that an individual has requested or is receiving a reasonable accommodation. In addition, employers must maintain reasonable security measures to protect sensitive personally identifying information.  Specific data privacy rules vary state by state.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are still responsible, to a certain extent, for ensuring a healthy and safe workplace even in a remote setting. The CLT establishes that employers must give express guidelines on ergonomics for employees to observe at home, which employees must acknowledge. Furthermore, the Labour Public Prosecutor issued Technical Note No. 17/2020 to guide companies through the pandemic, when many companies have shifted to a remote model. Among such guidelines, employers have been advised to provide training on health and safety.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

The OSHA governs the relationship between employers and employees with respect to workplace health and safety, and provides employer mandates regarding possible hazards in the traditional workplace. The key issues in work from home safety revolves around ergonomics. But the law recognises that employers have limited direction and control over the employee’s residence or other remote locations such as coffee shops, public libraries and so forth.  Nevertheless, employers have in many instances required employees to commit to keeping a safe workplace in their home and wherever they may work.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

The pandemic ignited a discussion as to the classification of covid-19 as an occupational or general disease. That classification influences the type of social security pension employees are entitled to and most importantly if employees will have job protection after their medical release – as this is limited to occupational diseases or accidents only. Although the law is not clear on such classification – as the understanding has changed throughout the pandemic by the issuance and cancellation of certain regulations – the current stand is that it will depend on proof of the existence of a causal link between work and covid-19 and employers’ actions towards preventing covid-19 from spreading in the workplace.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

With covid-19, the focus has shifted from workplace injury to workplace illness. Thus, the obligations have been expanded in that employers have had to think about exposures both inside and outside the workplace, and establishing safety protocols to help prevent employees from bringing the hazard into the workplace. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers’ obligations regarding health and safety are generally the same either in a proximate or remote-working environment. The main change is employers’ control of and management over employees’ remote-working setting and their actual ability to prevent work-related diseases and accidents from happening. As opposed to a physical workplace, where employers are directly liable for ensuring a safe environment, in a remote-working arrangement employers are limited to providing general guidelines and training on health and safety and implementing policies and procedures to avoid occupational diseases and accidents. Normally, employers would require employees’ confirmation that their workspace complies with all statutory requirements – photos and videos of their workspace may be required.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Yes.  Employees who as part of their job travel, visit customers and clients, and go from place to place, may be exposed to health and safety conditions that are beyond their employer’s control.  Nevertheless, employers need to take reasonable steps to keep their employees safe, even when they are outside the brick-and-mortar workplace.  The employer’s obligations to ensure their workers’ safety follows them as they travel for work, and, to the extent feasible, employers need to anticipate and mitigate against potential risks. On the other hand, employees who work from home are less likely to be exposed to these kinds of hazards, and the employer’s responsibility for the safety of employees who work from home is far less than for mobile workers or, of course, on-site workers. 

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Irrespective of the workplace arrangement, employers are legally responsible for promoting a safe and healthy working environment, not only to avoid occupational diseases or accidents, but also to enable employees to work to the best of their abilities and thrive in their careers. In a broader interpretation, that would include caring for employees’ mental health and wellbeing, as this can be negatively affected by a harmful working environment – to the point of triggering work-related mental disorders such as depression and anxiety, which leads to high absenteeism rates. For those working remotely, companies must promote certain integration actions, such as periodic meetings and constant feedback, as these are likely to go unnoticed when employees are not working at the company’s premises.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

This is not an area that has been a priority in the United States, particularly if the employees are remote. However, this will likely be a developing area in the future that employers will have to consider in light of the changes being brought about by the pandemic.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers have adopted different approaches to tackle Covid-19, including by terminating employees, shifting to a remote-working model or adopting one (or more) of the measures implemented by the Federal Government to help companies survive through the pandemic and avoid, to the most extent possible, layoffs. Examples of such measures would include: reducing employees’ working hours and salaries, suspending employment contracts temporarily, shifting to a remote model (with less requirements than those outlined in the CLT) and delaying the collection of certain labour charges. The union’s involvement in the implementation of these measures would depend on the measure itself (as some of them would not require the union’s ratification or participation). 

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

The pandemic has caused many companies to have to re-evaluate employee salaries and wages, and to make staffing changes. Where required by collective-bargaining agreements, these changes have resulted in bargaining with unions.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

There have been no major or reported involvements of unions in challenging the remote-working models adopted by companies. As a general rule, unions in Brazil tend to get involved whenever companies change (or implement) conditions that affect employees’ compensation (eg, removal of healthcare benefits or salary reduction), schedules (eg, longer shifts or working weekends), non-compliance with collective bargaining agreements or any other aspect that could ultimately negatively affect employees. The remote-working model was incorporated into the CLT as a form to adjust the law to current needs and the market, ensuring that those working remotely were given the same working conditions, with a few exceptions (eg, time-tracking exemption), as those working at the company’s premises.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Unions are criticising company responses (especially the lack of paid leave, sufficient staffing, and a process to address employee safety concerns) in recent organising efforts. The best thing non-union employers can do to avoid union drives of this nature is to be transparent. Employers should develop and communicate a covid-19 response that is compliant with state or federal mandates and “best practice” recommendations, be as flexible as is reasonably possible in balancing the interests of employees and the business, and regularly update employees.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are not required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement. The CLT establishes, in brief, that: the remote-working arrangement must be part of an employment contract or amendment thereof; the change to a remote model must be made by mutual agreement between the parties; and employers can shift back to the regular model by informing employees with at least 15 days’ notice. Considering that the remote model is quite recent in Brazil (as an actual model provided under the law) and that the overall employment rules apply to remote workers regardless, with a few exceptions (eg, exemption for time tracking), unions have neither had any influence nor been active in challenging changes in working arrangements. During the pandemic, some unions have been more focused on ensuring that companies were observing the health and safety measures recommended by the Ministry of Health and the WHO, rather than on the working arrangement itself.

Last updated on 21/09/2021

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United States

  • at Littler
  • at Littler
  • at Littler

Unionised employers may unilaterally implement a policy requiring employees to work from home if the applicable collective bargaining agreement contains language granting the employer the right to implement such a requirement. Unilateral action also would be permissible if a local, state or federal law mandates working remotely for certain classifications for employees. Even in that case, however, the employer would still have an obligation to bargain over any discretionary aspects of the policy, such as:

  • classes of employees subject to remote work (unless specified by the order);
  • frequency and timing;
  • consequences of an employee’s refusal; and
  • where the remote work will be performed.

Other provisions in a collective bargaining agreement may cede control over the situation to the employer. For example, the CBA may include a “management-rights provision” which permits the employer to operate and manage the workplace, require standards of performance, implement improved operational methods and procedures, or promulgate rules, regulations and personnel policies.  Even if the clause does not explicitly address the issue of working from home, it may be argued that the union has waived its right to bargain over the matter. 

Employers with union-represented employees need to carefully review existing collective-bargaining agreements to determine whether there is sufficient management rights language that would permit an employer to mandate working from home as a condition of employment.

Furthermore, to the extent an employer seeks to avoid a bargaining obligation by claiming that working from home is consistent with a local, state, or federal law or regulation, it will need to show that it is actually mandated by the law to require this.

Up-to-date information on the USA’s response to the pandemic, including State-level news and developments, can be found at Littler’s covid hub here.

Last updated on 21/09/2021