The 5th Panel of the Brazilian Superior Labor Court (TST) upheld the request for double vacation pay for an employee who exchanged WhatsApp messages with a colleague who was replacing her during vacation.
This topic is relevant because, with the advancement of communication technologies, it raises questions about their use at work, essentially whether the exchange of messages could be configured as available hours or overtime.
The Complaint in the case analyzed by the TST alleged that although she was on vacation, she spent 20 days exchanging countless messages with her replacement, and this fact prevented her from fully enjoying her vacation days.
The 45th Labor Court of Rio de Janeiro upheld the request for double vacations based solely on WhatsApp exchanges during the vacation period, alleging an offense against the “right to disconnect from work”.
The company appealed and the TRT of the 1st Region reformed the sentence, on the grounds that the Plaintiff viewed the messages spontaneously, and the mandatory provision of work during the vacation period was not proven. Giving light at the end of the tunnel by highlighting employees’ freedom to read messages or not and respond to messages or not.
From this decision, we highlight 5 points that companies must observe to regulate the use of WhatsApp (or other technological means) outside working hours and during rest periods:
(i) Provision of rules regarding the use of WhatsApp or other technological means in companies’ internal policies and codes of ethics;
(ii) Keep participation in conversation groups voluntary, and responses to questions asked should not be mandatory (essentially when done outside working hours and during rest periods);
(iii) Reinforce, when granting vacations, rest periods and with the management team, the guidelines regarding the use of WhatsApp and other means of communication, making clear their voluntary and not mandatory nature;
(iv) Opt to apply a rule for employees to withdraw from groups during periods of vacation or leave; and
(v) The company can negotiate with the Labor Union the inclusion of a provision in a collective agreement regarding the voluntary nature of the use of technologies outside working hours and during rest periods, without characterization of overtime or available hours.
The practices recommended above aim to ensure a healthy work environment, employee well-being and protection of the company to mitigate potential future labor risks.
