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Businesses Communications Idle

Workers In Brazil Can Claim Overtime For Answering Email After Hours 198

Posted by Soulskill
from the not-always-connected dept.
New submitter zzyvits writes "With smartphones becoming more and more common, the push for employees to work after hours is becoming greater. Would the push be as hard if the employers had to pay for it? A law recently passed in Brazil makes it possible for employees who answer emails after normal work hours to claim overtime pay."
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Workers In Brazil Can Claim Overtime For Answering Email After Hours

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  • by Anonymous Coward on Saturday January 14, 2012 @10:25AM (#38697626)

    Who is responsible for being so fair to workers? We'd never get that here (meaning US.)

    • by cayenne8 (626475) on Saturday January 14, 2012 @10:41AM (#38697756) Homepage Journal
      Actually...it puts more incentive for people to try to opt for the contractor paradigm.

      I don't mind working....but I do NOT work for free. If I do work at any time, I bill for it, and yes, it definitely makes the employer think twice about calling or bothering you after hours.

      This, and considering that there is such thing as employer loyalty nor job security....hell, just about everyone should opt (if possible) for the contractor route.

      If you're gonna get the loyalty and job security from an employer that a contractor gets, you might as well get the freedom, tax breaks and bill rate that a contractor gets....no?

    • by russotto (537200) on Saturday January 14, 2012 @11:30AM (#38698064) Journal

      Who is responsible for being so fair to workers? We'd never get that here (meaning US.)

      It's already law in the US, for non-exempt employees. If you're required to respond to emails, the time you spend responding to them count as "hours worked".

      29 C.F.R 785.12: "The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked."
       

      • by morcego (260031)

        If you're required to respond to emails, the time you spend responding to them count as "hours worked".

        And the key word here is "required".

        Yes, if you are REQUIRED to do it, then yes, it should count as overtime.

        • by sjames (1099)

          Just watch out for cases where it's constructively required. Cases where it's entirely 'optional' except that you go to the top of the layoff list if you don't.

          • by russotto (537200)

            Just watch out for cases where it's constructively required. Cases where it's entirely 'optional' except that you go to the top of the layoff list if you don't.

            Doesn't matter; in the US even if the work is 'optional' you have to be paid for it if you're non-exempt, if the employer knew or had reason to believe you were doing it.

            • by sjames (1099)

              Exactly, and mostly for the reason I pointed out. But that wasn't Morcego's proposal.

    • by hedwards (940851)

      Actually in the US under the FLSA employers have to pay for all the time that employees spend working, regardless of when that happens. There are a few things which are excluded from that list, but answering email and phones is definitely something they're required to pay for. The problem though is that getting it enforced is quite cumbersome and employers are used to getting that work for free.

      At the end of the day if they need people working outside of business hours they need to be going through the prop

    • by morcego (260031)

      So companies cannot monitor employees e-mail usage. That is unfair and violate their privacy.
      Companies cannot stop employees from using the company e-mail for personal things. That would be unfair.
      But if the employees use e-mail after hours, it is considered overtime.

      It is also interesting that, in Brazil, you have to pay the employee for overtime even if it was UNAUTHORIZED. Even if the company has a policy in place that authorization is needed. Since (according mostly to unions), authorized or not, the co

      • by russotto (537200)

        So companies cannot monitor employees e-mail usage. That is unfair and violate their privacy.

        In the US, companies can monitor employee e-mail usage. I don't know about Brazil.

        Companies cannot stop employees from using the company e-mail for personal things. That would be unfair.

        Companies in the US can prohibit employees from using the company email for personal things. Whether they can stop it is a different matter.

        It is also interesting that, in Brazil, you have to pay the employee for overtime even if i

        • by morcego (260031)

          So companies cannot monitor employees e-mail usage. That is unfair and violate their privacy.

          In the US, companies can monitor employee e-mail usage. I don't know about Brazil.

          In theory, not only company can do it in Brazil, but they are obligated by law to do so. The law states that "any crime or offense committed using companies resources make the company in question automatically co-responsible" (that is not the exact wording, and it is a rough translation). It was already tested in court in one case, and the company won, so there is jurisprudence. However, this kind of issue is so expensive for the company that, unless they have very deep pocket and big interest in this kind

  • on the other hand (Score:2, Informative)

    by Anonymous Coward

    People also use their smartphone more during work hours for all things but work.

  • If you work after hours (no matter what you are specifically doing) and you are employed on a hourly basis then of course you can claim overtime.
    You do not need a specific law for this.

    • by drinkypoo (153816)

      But how much can you claim? if your employer calls you in they have to pay you for at least two hours... well, where I live, I don't know how widespread that is. If I have to think about work for half an hour I will keep thinking about it after that time, and it will impinge upon me. But I probably still only get to claim half an hour, right?

      • That is how it is where I work. I actually felt bad that I just threw on half an hour of out of work time (I even wanted it straight since I was on vacation) because one morning one group woke me up, and when I was done with them I had two other groups pestering me immediately for information questions. So I charged that half-hour out of spite/principal. Some of it through emails.

        Work gave me two hours because technically it was a call-in.

      • "If I have to think about work for half an hour I will keep thinking about it after that time, and it will impinge upon me."

        That is the most ridiculous thing I have ever heard.
        If your job involves complex problem solving (you get paid to think) then obviously you can change them for overtime contemplation.
        If you are saying every time you are reminded of work you spend hours uncontrollability and un-constructively thinking about it, like a tune stuck in your head. then of course you cannot.

        Let me restate: if

      • by Lumpy (12016)

        "But how much can you claim? if your employer calls you in they have to pay you for at least two hours... "

        I leave work and drive home. if I get a phone call or email I must respond to I coult all the time from when I left work into that call.

        Call to ask me a question at 10pm? I just got 5 hours of overtime for that call. IT significantly limits the quantity of dumb calls that can easily be answered the next work day at the office.

    • by TrekkieGod (627867) on Saturday January 14, 2012 @10:40AM (#38697738) Homepage Journal

      If you work after hours (no matter what you are specifically doing) and you are employed on a hourly basis then of course you can claim overtime. You do not need a specific law for this.

      In Brazil, salaried workers get paid overtime if they work over 44 hours a week or more than 8 hours in a single day. So, if you worked a normal 40 hour week, but had to pull 10 hours on a tuesday, you get paid your salary plus 2 hours overtime.

      • If you work after hours (no matter what you are specifically doing) and you are employed on a hourly basis then of course you can claim overtime. You do not need a specific law for this.

        In Brazil, salaried workers get paid overtime if they work over 44 hours a week or more than 8 hours in a single day. So, if you worked a normal 40 hour week, but had to pull 10 hours on a tuesday, you get paid your salary plus 2 hours overtime.

        Communists!~

      • Same as Canada, nut normally at least (not sure about the law). you need a full time week to get any overtime during the week (weekend is always overtime).

        • Same as Canada, but normally at least (not sure about the law) you need a full time week to get any overtime during the week (weekend is always overtime).

    • by sunderland56 (621843) on Saturday January 14, 2012 @10:40AM (#38697742)
      1. Team up with a co-worker.
      2. Exchange a long string of emails back and forth each evening.
      3. Profit!
      • At which point HR will look rather closely at your "work related activity" out of hours. At the very least they will just not pay you that over time, and every single hour that you claim after that will be scrutinized. Or they will just fire you for fraud. You might get away with a few hours every month, but "each evening" will earn you the pink slip you deserve.

        The system relies on people being honest.

        • by tqk (413719)

          The system relies on people being honest.

          You're what's wrong with 21st Century management. You immediately leap on the dishonest button when confronted with something new, instead of looking at it as potentially a smart innovation that would be good for all concerned.

          I've worked lots of places where there was no time during the day to train subordinates and not enough time to get everything done. When half my working day's taken up attending meetings and other such BS, when do we actually get any work done?

          I'd consider it a pleasure to be online

  • They're not going to pay overtime. So what they'll do is instruct the email servers to not send mail outside office hours. This might cause problems if employees don't all work at the same time. But doubtless the servers can be programmed to send mail in some customized fashion.

    Maybe even make it the employee's job to update a settings page in the web terminal for the email system.

    Memo 5441: Employees are required to keep current their hours by logging into the provided address. Errors in this system will b

    • by Hentes (2461350) on Saturday January 14, 2012 @10:43AM (#38697764)

      Not paying overtime by not requiring overtime work is exactly the purpose of this legislation I believe. What is wrong with that?

      • by Rockoon (1252108)

        Not paying overtime by not requiring overtime work is exactly the purpose of this legislation I believe. What is wrong with that?

        You mean besides the fact that its a coercion of freedom?

        Maybe I want to market myself as available for some minor duties (such as responding to urgent emails) after hours, as needed, for a higher base wage? Well now if I lived in Brazil I cannot do that.

        Furthermore, wont the effect be to exert a downward pressure on the base pays of those this law happens to target?

        • Re: (Score:2, Interesting)

          by Anonymous Coward

          Maybe I want to market myself as somebody who isn't worried about inhaling toxic gasses. Worker safety laws are a coercion of freedom.

          If workers don't want to inhale toxic gasses, then they won't take those jobs. Just like how that happened before worker safety laws.

        • by Hentes (2461350) on Saturday January 14, 2012 @11:15AM (#38697966)

          Brazil is a leftist country, which means they take workers' rights seriously. You see, as there is a competition in a labour market, without regulations like minimal wage or overtime pay the companies could just require workers to work more for less pay, because there would always be someone else to take the job. By regulating overtime, the state ends the competition between the workers, thus solving the prisoners dilemma scenario and resulting in an environment that's better for everyone.

          • by Rockoon (1252108)

            You see, as there is a competition in a labour market, without regulations like minimal wage or overtime pay the companies could just require workers to work more for less pay, because there would always be someone else to take the job.

            Countries like Hong Kong seem to do OK with very few regulations, because their over-supply of workers induced more businesses to start up inevitably reducing that over-supply of workers. America was the same as they used to let anyone in the world come here, and by the millions per year they did. By the end of that period America had the most diverse and powerful economy on the planet.

            Minimum wage is the most regressive employment regulation imaginable.

            • Well, while we wait for our south american countries to become as nice as Hong Kong, we have families to feed. And without regulation, companies have screwed the workers as much as possible. We've had very low regulation periods (aka the 30s, 70s, 90s) and companies didn't use that to create jobs nor make the economy flourish but to ransack as much as they could. Hey, even banks like Citybank and Bank Boston (champions of the free market?) decided not to pay our bank deposits back in 2001. So what did we d
              • by Rockoon (1252108)

                We've had very low regulation periods (aka the 30s, 70s, 90s) and companies didn't use that to create jobs nor make the economy flourish but to ransack as much as they could.

                You mention the 1930s, but that was a time of great instability in Brazil, with a revolution in 1930 and then a coup 7 years later.

                Then you mention the 1970s, the period of Operation Condor and military dictatorships.

                Then finally you mention the 1990s, which while removing the military dictatorship, only did so because hyperinflation was just kicking. Then you have the period of dual currencies, culminating in a great deflation of one while trying to stop the rapid inflation of the other.

                Banks are no

            • by Hentes (2461350)

              Countries like Hong Kong seem to do OK with very few regulations, because their over-supply of workers induced more businesses to start up inevitably reducing that over-supply of workers.

              Do you really try to compare the economy of a city-state to a huge country like Brazil?

              America was the same as they used to let anyone in the world come here, and by the millions per year they did. By the end of that period America had the most diverse and powerful economy on the planet.

              Being the most powerful economy doesn't do much good when only a few percent of the citizens gets a share of that booming economy due to inequalities.

        • by Kjella (173770)

          Yeah, a lot of those worker protection laws are restrictions on your freedom to work in unsanitary, dangerous conditions and on exploitative or slave contracts. And apart from a few libertarian freaks most think it's a good thing.

          Any time you get a specified amount of money for an unspecified amount of work you're going to get screwed, because the natural reaction in every company is to abuse that privilege as much as possible. Paying you a fixed salary with no overtime is like the company giving a fixed pr

        • It won't push down the wages of the people this law targets - because I bet you at the moment they aren't being paid for the work at all. Now the companies have a choice - they can either cut off their servers from sending emails out of hours OR they can pay their employees for working out of house.

          In the case of the former, the employee will get paid the same and have more time to enjoy themselves

          In the case of the latter, the employee will get paid more because it will be over time.

        • I agree... ideally one should be able to wave this whole overtime thing since a lot of employees aren't paid by the hour anyway. Just make it part of the law that no employer can coerce someone to wave the requirement and that it has to be voluntary.

        • by sjames (1099)
          p>If your employer doesn't want you to do that, then your marketing failed. If it is wanted, your email won't be disabled. If you're marketing yourself for contractor work elsewhere, use your personal email.
    • What did you want, some law that lets employees print money by answering a few emails, without the company's ability to control that cost at all? Come on.
    • VW already do this with their Blackberry servers, although the state aim was to encourage a better work life balance. I realise this concept is strange to a lot of Americans - but there are companies out there that do this.

      • You had me until you made the stupid insult against my country.

        We are well aware companies do bad things all the time. My point was that the companies are not paying for overtime. They won't do it. So the new rule is going to be disabling the email.

        Please save the juvenile insults.

        • Which is the desired outcome in a rational society, just a very easy way rather than directly legislating.

          • The wealth of nations is directly related to their productivity. Just be careful that you don't reduce the productivity of the economy or everyone suffers.

  • nothing new (Score:4, Informative)

    by queequeg1 (180099) on Saturday January 14, 2012 @10:41AM (#38697748)

    This isn't new, isn't specific to smartphones, and (as noted in the article) isn't unique to Brazil. Many employers have the ability to allow employees to check work email remotely from their home PCs. However, most sophisticated employers (or perhaps more paranoid) are careful about opening up such access to non-exempt employees (i.e. employees who are paid on an hourly basis) because of wage and hour issues. My employer (a US healthcare system) requires non-exempt employees to get manager permission before remote access is enabled and even then there are explicit rules about when the employees should be accessing email remotely. Compliance can be easily monitored but, conversely, wage and hour problems can also be easily proven through log in records.

  • It is about time that companies pay their employees for the work done. My manager once told me that he expected me to answer work emails until 9pm each weekday evening, and all day on Saturdays and Sundays. He effectively double the length of my work week, and there was no compensation for it.
    • by green1 (322787)
      If you are on salary, it is often hard to argue as the work day may have relatively loosely defined hours. However now that I get paid hourly I tun my work phone off at the end of my shift, and it doesn't turn back on again until the start of the next one. I have to give my phone number to every customer, I asked my employer if they would pay me to answer it outside of work hours, they said no, so I turn it off to eliminate the problem. In an emergency, if my employer wants me to come in to work (with pay)
  • The employers in the USA have pretty much figured this out already. I can't remember the last position I had where I wasn't exempt from overtime.
  • by PolygamousRanchKid (1290638) on Saturday January 14, 2012 @10:58AM (#38697842)

    . . . will be the last one to receive a promotion . . .

    Dynamically weight and sort promotion list based on willingness to do overtime email for free.

    Patent this.

  • I have a Brazilian boss, and I can claim overtime for answering e-mail from home, too...

    Won't make a damn bit of difference in my paycheck, since I'm on salary, and we have the 70+ club for people who work 70+ hours a week - I think the club members got a T-shirt last year, or maybe it was a ball cap, anyway, all those hours over 40 sure are appreciated, hardly compensated at all, but appreciated.

  • Sounds like great news, can't make other comments.

  • When I worked for NorTel, we got a 3-hour "callout" if we had to deal with an issue we were paged for, so carrying a pager could actually be a nice perk if you could deal with the hassle of nightly calls for an unreliable system.

    But it's been a long time since I've seen a company that would pay callouts.

    Maybe the employers and customers who used to call me during off-work hours would have stopped if I'd been greedy enough to bill them a 3-hour callout when they did so, instead of letting them abuse the

    • by mjwalshe (1680392)
      Well I used to work for British Telecom and on call was a perk I knew people working in some teams that where on 4 in 4 they got called about once a month form what I remember it was around $600 a week just for being on call plus TOIL at OT rates on top of that.
  • in order to pay overtime for reading emails off the clock, the company must first subtract the time the employees spend on slashdot, facebook, checking personal emails and other websites while on the clock. Seems to me most employees would owe the companies.

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