Justices will define whether the measure’s linking to productivity premia stand as presumptive nonpecuniary damage.
The Superior Labor Court (TST) will define whether the linking of productivity premiums to the control of employees’ trips to the toilet stands as presumptive nonpecuniary damage — that is, one that the employee does not need to prove. The issue will be reviewed through a repetitive appeal, which binds the lower courts of the Labor Court System.
The controversy revolves around a portion of compensation called the Variable Incentive Program (VIP), an award system adopted by companies based on productivity or performance goals. In some cases, breaks for basic activities, such as going to the bathroom, can influence the results and reduce the amount paid to workers (Theme 034).
The discussion involves telemarketing work. This type of activity, according to Annex II of Regulatory Note 17, is subject to a different regime, including a six-hour day and mandatory breaks of 40 minutes, divided into one of 20 minutes for food and two others of 10 minutes. In this context, bathroom breaks — outside of regular breaks — impact the time actually spent on the working day, which is usually one of the criteria for calculating PIV.
In the case to be analyzed by TST, one worker’s supervisor called to testify stated that they are not forbidden to take breaks, “we only advise them to be careful because this affects both our result and their’s [the worker’s].” They also asserted that they never “caught the plaintiff in the bathroom” or threatened her.
The statement was used as a basis to deny the worker’s claim for compensation for nonpecuniary damages. According to the Regional Federal Appellate Court of Paraná (TRT-PR), “breaks for trips to the bathroom outside regular break periods, as well as absences from work supported by medical certificates indirectly and consequentially impact the variable compensation indicator ‘available time,’ which, nonetheless, does not imply nonpecuniary damage, as it does not prevent from receiving the relevant payment nor does it mean a negative indicator as concerns achieving the established goals.”
Most TST panels, however, reject this interpretation. In December 2023, an appellate decision of the 3rd Panel highlighted that “the restriction by employer to the use of a bathroom by employees violates the principle of human dignity, protected by Article 1, Item III, of Constitution, implying an actual abuse in the exercise of the company’s management power” (RRAg-1178- 17.2018.5.09.002).
The 1st Panel rendered a matching decision in another case, pointing out that the linking of bathroom breaks to ascertaining PIV shows “the existence of a mechanism that aims to restrict the use of those facilities, impelling workers to neglect their physiological needs under penalty of having their compensation reduced” (Ag-RRAg-1366-42.2019.5.09.0872).
The standardization of caselaw by TST will represent an advance for the court system, since, despite the panels’ prevailing opinion, some regional appellate courts are not enforcing it. This is what the worker’s defense, spearheaded by lawyers of Martins, Buch & Sato Advogados Associados, tells Valor.
According to Leandro Augusto Buch, the trial of those repetitive appeals means supporting “their decisions as a way to reduce litigation, either because it establishes an opinion of mandatory compliance by the other Regional Labor Courts, or because it offers relevant guidance for the conduct of employees and employers, and adjust them to the provisions in the Federal Constitution.”
According to experts, the standardization of caselaw by TST will have a direct impact on this industry’s companies. In turn, Renata Tognini, partner at Ernesto Borges Advogados, asserts that “it can lead companies to redesign their incentive policies, or even to extinguish the policies owing to legal uncertainty about what is or is not included in the employer’s management power.”
For her, generalizing the presumption of nonpecuniary damage will lead to an increase in the number of lawsuits on the subject, “burdening the court system even more.” “The submission of the theme to the system of repetitive appeals aims to reach a harmonized solution to the issue, but ends up encouraging those workers who did not even think of filing an employment claim.”
Telemarketing companies, she points out, have to comply with several requirements regarding the time for customer service, and are subject to government regulation. “It would be important to analyze what was the impact caused since this criterion has been included in the variable compensation program. Whether it really harmed the workers’ health,” she says.
From another standpoint, however, the control of bathroom use, even if indirect, violates the principle of human dignity, provided for in Article 1 of the Constitution. “Any attempt to limit or restrict the exercise of these rights by the employer, under the justification of preserving the organizational flow or ensuring employee’s productivity, proves to be inconsistent with constitutional principles,” says Eliane Ribeiro Gago, head of the labor division at Duarte Garcia, Serra Netto e Terra Advogados.
According to Rebecca Loureiro, an associate of the same law firm, the possible impact of a TST decision recognizing the automatic presumption of nonpecuniary damage would be increasing the number of employment damages. “For companies, the decision will represent the need to bolster internal policies and compliance practices, with a view to avoiding conduct that may result in adverse judgments.”
Mayra Sampaio, partner of Mayra Sampaio Advocacia e Consultoria Jurídico, believes that the standardization of caselaw, instead of increasing the number of lawsuits, would release the higher courts from burden, by inhibiting the need for appeals. “Despite increasing costs for companies, the measure has the potential to prevent abusive practices and provide greater legal certainty,” she asserts.
Interview available in: https://valor.globo.com/legislacao/noticia/2024/12/25/tst-julgara-controle-de-idas-ao-banheiro.ghtml
Autor: Renata Gonçalves Tognini Favalli • email: renata@ernestoborges.com.br • Tel.: + 55 67 3389 0123
