Challenges in the employment relationship: Flexibility vs. Protection

New forms of work, analysis of current case law and the importance of continuous review of internal policies.

The digital transformation and globalization have brought to the corporate environment the emergence of working methods that challenge the traditional model and impose the need for regulatory adaptations.

These innovations include Remote Work, which makes it possible to carry out work activities outside the company's physical environment, driven by technology, requiring the implementation of clear rules that guarantee worker protection (such as the right to disconnect, control of working hours and ergonomic conditions) without jeopardizing the desired flexibility. Provisional Measure No. 1.018/2020 (later converted into Law No. 14.020/2020), which regulated teleworking and established guidelines for its implementation, serves as an example of the necessary adaptations to the new reality.

There are also flexible working hours that allow employees to be called in to work sporadically, with pay proportional only to the period worked. Although this makes companies more adaptable, it creates uncertainty as to economic stability and the guarantee of labor rights, which is why it is essential to adapt the rules to avoid abuses.

The challenge lies precisely in balancing the flexibility required by the market with employee protection, ensuring, for example, the proportionality of vacations, 13th salary and any additional payments provided for by law.

In recent years, the courts have taken a clear stance on the responsibility of companies to create adequate working conditions, even in the context of outsourcing and atypical forms of hiring. Some points of note include poorly structured outsourcing that ends up generating the recognition of employment relationships and inadequate working conditions.

Several court decisions have reaffirmed the subsidiary or even joint and several liability of contracting companies for irregularities in the management of outsourced workers. In specific cases, it has been shown that the absence of control mechanisms and the lack of integration of the outsourced worker into the organizational environment can lead to the recognition of the employment relationship or the redirection of liability to the contractor.

An example of this position is Precedent 331 of the Superior Labor Court (TST), which emphasizes the need to prove that the employer has not actually performed the service, stressing the importance of strict compliance with contractual obligations.

The courts have also emphasized that even in the face of new ways of working, the employer has a duty to ensure minimum safety conditions, ergonomics and adequate breaks, under penalty of failure to protect the employee. In these cases, the absence of clear occupational health policies and the lack of investment in technological infrastructure are seen as factors that aggravate occupational risk, thus imposing liability on the company.

Thus, the combination of the challenges posed by the new forms of work and the need to protect workers' rights requires a proactive stance on the part of companies and their legal staff, so that they keep up to date with regulatory changes and court rulings, adapting their internal practices to avoid litigation.

It is imperative for human resources managers to constantly invest in training and technology in order to efficiently manage the new working methods.