The modernization of labor relations, the advancement of technologies, and the constant use of mobile phones have led to the creation of various possible channels of communication between employees and the proliferation of social networking groups. The lack of a regulation on their use at companies, however, exposes the employer to risks related to overtime, time on call, and even non-economic damages. This makes it essential to guide employees on how to use these means for professional purposes, especially in the most popular, less formal and usually personal channels, such as WhatsApp.

The sending of messages regarding work and the obligation to reply outside working hours can give rise to recognition of overtime and time on call. In 2019, a decision by the Labor Appeals Court (TRT) for the 4th Circuit/RS became final, which granted a claim for overtime by an employee who used WhatsApp outside of his normal working hours for conversations of interest to the company.[1]

The same court, in March of 2020, recognized an on call arrangement for an employee who was required to be available to the company by telephone and through messages in that application.[2] Likewise, in July of 2020, a decision by the TRT for the 1st Circuit/RJ became unappealable, according to which, for the purpose of establishing an on call arrangement, it is necessary to prove that there was an express requirement by the company regarding the employee's participation in the WhatsApp group outside of working hours.[3]

The creation of a WhatsApp group can confuse personal and professional relationships among employees and even lead to situations among subordinates and managers that could be interpreted as moral harassment. Recently, the 3rd Panel of the Superior Labor Court (TST) upheld a judgment for non-economic damages for moral harassment that occurred in a corporate WhatsApp group in which managers discussed delays and absences of employees, results, and names of those who did not meet the team's weekly goals.[4]

Although new channels of communication facilitate interaction between employees, the employer should be aware of the risks they present. One way to mitigate such risks is to develop internal policies to guide and regulate the use of these channels in order to maintain a safer working environment for workers and the company itself.

[1] RO 0021845-23.2017.5.04.0401

[2] ROT 0020459-74.2017.5.04.0233

[3] ROT 0100353-31.2018.5.01.0045

[4] RRAg-1001303-33.2018.5.02.0321