In Brazil, OT for after-hours virtual work

BRASILIA, Brazil -- Brazilians tired of answering their boss' after-hours emails may be able to charge overtime based on a new law that businesses say will hurt competitiveness in Latin America's largest economy.

Using portable communications devices is equivalent to working in the office, according to legislation signed by President Dilma Rousseff last month.

The law is one more obstacle companies say they face in Brazil, where regulations mandating everything from employer-provided breakfasts to union contributions are considered a daily drag on efficiency. The World Bank ranked Brazil 126 out of 183 countries in its 2012 competitiveness study.

"If enforced, it could have an enormous impact, a large loss of productivity," Emerson Casali, head of labor relations at the National Industry Confederation, said of the new law.

The law coincides with a growing concern in countries including the United States over how to set boundaries between work and leisure in an era of virtual offices and the need for 24/7 communication.

The law has elicited concern because Brazilian law and judges tend to favor employees in disputes related to overtime pay, said Bruno Checchia, a labor attorney.

The Superior Labor Tribunal, the top labor court, is studying the law and said it will also consider whether being on call with a mobile device in hand is considered work and subject to compensation.

"The law says working remotely is like clocking in," Joao Oreste Dalazen, head of the court, said.

Employers are bracing for trouble. Checchia said he's fielded several calls from clients worried the law could drive their personnel costs up. Unions say the law is essential to prevent work from further encroaching on personal time.

A survey by Washington-based Wakefield Research for Motorola Mobility Holdings last year showed almost half of Americans say they've been awakened at night by a call, text message or email from work.

In the United States, where managers and professionals often aren't paid for overtime, a growing number of companies are reviewing their policies on the use of smartphones, said Eric Pelton, a partner at Kienbaum, Opperwall, Hardy and Pelton.

Companies such as Verizon Communications Inc., T-Mobile USA Inc. and Stanley Black & Decker Inc. have already been sued for unpaid overtime related to smartphone use.

"This is likely only the beginning," said Spencer Silverglate, a lawyer at Clarke Silverglate in Miami.