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TST Confirms: In Home Office, If There Is Control of Working Hours, Worker is Entitled to Overtime and Night Shift Pay, Even Without Electronic Point.
The home office, which became established during the pandemic, brought conveniences but also opened a field of legal disputes. Many employers believed that, away from the office, controlling working hours was unfeasible and thus the rules on overtime would not apply. However, the legislation was clear: when there are means of supervision, remote work must follow the same working hour rules of the CLT.
Article 62, III, of the CLT, introduced by the Labor Reform of 2017, excludes from control of working hours only employees in a telecommuting regime when it is not possible to control the working time. But if the company uses apps, software, goals, reports, or any system that allows knowing the employee’s working hours, the courts understand that the right to overtime and night shift pay remains.
What the Law Says About Working Hours in Telecommuting
The standard working hours provided in the CLT are 8 hours daily and 44 hours weekly. Article 7, XIII, of the Federal Constitution reinforces this limit.
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In telecommuting, the law does not eliminate the employer’s obligation to respect these limits—it only allows for greater flexibility. If the employer monitors results, requires logins in systems or tracks hours, this already constitutes indirect control, which opens the door for payment of overtime.
Additionally, Art. 73 of the CLT guarantees an additional 20% for night work (from 10 PM to 5 AM), which also applies to remote activities.
Consolidated Understanding by the TST
The Superior Labor Court (TST) has already judged various cases involving home office. The prevailing jurisprudence is that, if there are means of control, the exception in Art. 62, III, of the CLT does not apply.
An example was the 2022 ruling in which the 3rd Panel of the TST determined the payment of overtime to a systems analyst who worked from home but had to log activities in a company software. The court concluded that indirect supervision was sufficient to characterize the control of working hours.
Another recent case confirmed the payment of night shift pay to a professional who sent reports in the early morning, proving that the activity occurred outside regular hours.
Impacts for Companies and Workers
The recognition of the right to overtime in telecommuting has practical consequences:
- For Workers: ensures fair additional remuneration, prevents abuse, and protects health, as excessive work at home increases the risks of stress and mental illnesses.
- For Companies: creates the need for clear working hour policies, under penalty of judicial claims and high labor liabilities.
A ruling for overtime can be costly: daily accumulated minutes for thousands of remote employees can result in million-dollar judgments.
The Risk of the “Right to Disconnect”
Another expanding debate in the judiciary is the so-called right to disconnect, which prevents employers from requiring responses outside working hours. Courts have already recognized that WhatsApp messages, calls, or emails after working hours constitute control of working hours and generate the right to overtime.
This interpretation aligns with European decisions and reinforces that, even in telecommuting, employees must have their limits respected.
Experts Warn About Cautions in Home Office
For labor attorney Gustavo Filipe Barbosa Garcia, “the fact that the work is remote does not exempt the company from respecting working hours. Whenever there are means of monitoring, there will be liability.”
Labor judge Adriana Goulart de Sena Orsini states that “the pandemic showed that it is possible to control working hours remotely. The challenge now is to balance productivity with health and the rest of the worker.”
The message from the courts is clear: home office does not mean absence of labor rights. Whenever there is a possibility of oversight, the employee in telecommuting is protected by the working hour rules of the CLT.
This includes the right to overtime, night shift pay, and rest, even without a formal electronic point. For employers, the message is direct: establishing clear limits is the only way to avoid million-dollar liabilities.
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