O ônus da prova quanto às horas extras no teletrabalho

Abstract

The present article deals with the theme of the burden of proof regarding overtime in telework in cases of effective control of working hours. The research aimed to analyze the distribution of the burden of proof in cases that the telework employee has his work hours controlled by the employer, moving away the impossibility of paying overtime, contrary to what is stated in the article 62, III, of Consolidation of Labor Laws. For that, the deductive method and the literature review, as well as the jurisprudence, were used. It is understood that charging the telework employee with the burden of proving that his work hours are controlled with the purpose of obtaining overtime payment means disregarding the employee’s lack of sufficiency and suppressing labor rights, without considering the possibility of reversing the burden of proof that consider the article 818 of the CLT. It was concluded that the lack of legislation updating regarding the technological means of remote labor control results in controversial decisions about the receipt of overtime by telework employees, and its adequacy should be sought aiming legal certainty and the respect of labor principles, such as the principle of protection, principle of the most favorable norm and principle of the primacy of reality.