Due to the increase in the number of digital nomads in the labor environment and in others, this topic has been increasingly discussed. Digital nomads, within the labor environment, are employees who have a life and work-style that allows for continuous change. In order to keep this life-style, work is also remote, and they can be hired by a company or work autonomously, in addition to the nationality of the company and where it is located being irrelevant to the employee.
It is really important to stress that this life and work-style differs from the modalities of home office or telework, hybrid or the employee who needs to travel for the company from time to time. The teleworker, according to Chapter II-A of the Brazilian Consolidation of Labor Laws, is the service provider who predominantly works outside the facilities of the employer. The hybrid work is a model that offers flexibility, in which part of the work hours is performed at the company’s headquarters and the other part is performed where the worker wishes.
The contracting method, the current legislation and even the union performance are issues extremely current and important for digital nomads. As for the legislation, Brazil joined the list of countries that have a migratory legislation with the publication of RN 45/2021 intended for Digital Nomads, however, there is still a lot to be discussed on the matter. It also important to distinguish that the immigrant who performs labor activity within the Brazilian territory, with or without employment relationship, to an employer in Brazil will not be a digital nomad, but an expatriate, and must have a work visa, even if he/she works remotely.
Regarding which labor legislation is applicable, there is still no jurisprudential definition, and in international contracts the Principle of the Law of the Contractor’s Recipient, that is, it tends to follow the laws of the country where the contractor is. However, MP1108/22 allows for the use of the Brazilian labor legislation to regular the activities of the digital nomad.
Regarding unions, there is an understanding that part of the issues involving this matter could be settled in union negotiation, particularly due to the recent decision issued by the Supreme Federal Court concerning topic 1046, which established the understanding that the negotiated prevails over the legislated.
Thus, it is extremely important that the contracting company uses caution, striving for clarity and a broad analysis of the specific case. It is convenient to establish an internal policy, to regulate the work of digital nomads, and a straightforward contract between the parties, who will be able to provide greater legal certainty.
Written by Júlia Soares, Intern in Labor Law at drummond Advisors