Few employers realize that exchanging messages via WhatsApp can be used as evidence in a labor claim. The use of this mechanism has already been accepted, including to prove that the company is able to monitor at a distance the work schedule of an employee who works remotely. In practice, this means that the employee can claim the right to overtime simply because the employee does not fall within the exception provided for in Article 62, I, of the Consolidated Labor Laws (CLT), which exempts from the monitoring of hours of remote activities incompatible with the establishment of a work schedule.
In another situation, the messages exchanged via the application were used to prove that the respondent company was aware of an accident with an employee on its premises, an allegation that it initially denied.
A few decisions required transcription of the messages via a sworn notary to validate the use of WhatsApp content as evidence, in view of the possibility of manipulation of the information. However, most of the judges accepted the information as evidence in labor proceedings without requiring this formality.
It should also be remembered that the exchange of messages outside of the time and place of work can constitute work and give rise to the employee’s right to receive overtime. For the Labor Courts, the use of this tool is equivalent to the situation of employees who attend to work demands by cell phone.
Thus, it is imperative that the employer be careful in using tools such as WhatsApp, whether it is the time of the message exchange or the content of the conversation with the employee.