Member Article

Pursuant to Article 74, 2nd paragraph, of the Brazilian labor code, companies with more than ten employees should control the working hours of its employees by means of manual, mechanic or electronic time registers.  

Electronic time registers (“ponto eletronico”) have been commonly used by employers to keep track of employees’ work hours. However, as of August 21, 2009, electronic time registers are being regulated by Administrative Regulation no. 1,510 issued by the Labor Ministry.  

The employer is not obliged to use an electronic time register while controlling the employees’ work hours – as mentioned above, other options would be manual or mechanic time registers, or even other alternative system, if foreseen in the applicable Collective Bargaining Agreement. However, if the employer chooses to use the electronic register system, the new rules imposed by the abovementioned Administrative Regulation will apply.

The main feature of such regulation is the mandatory use of a Time Electronic Registration System (“Sistema de Registro Eletrônico de Ponto” – SREP). The SREP consists of a special equipment with computerized programs created for the purpose of registering the employees’ work hours in a trustful way. 

In this sense, the SREP prevents actions such as: (i) restriction of registration times; (ii) creation of automatic records; (iii) requests for authorization to register overtime hours; and (iv) modification of the work hours registered. 

A Time Electronic Register (“Registrador Eletrônico de Ponto” – REP), which is part of the SREP, is a device designed to register the time of employee’s entrance and exit of the company’s premises. The employer must issue receipts of such time records printed using the REP, every time there is a new registration. 

SREP also contains a Record Data Treatment Program, which allows the employer to make eventual observations regarding occasional omissions and mistakes registered in the employee’s time register records.  

Employers will have twelve months as of day the Administrative Regulation was published to adjust themselves to its terms. Until then, the use of the REP and the printed version of time records are not mandatory. However, the employer must start complying immediately with the rules established by the Administrative Regulation regarding Record Data Treatment Program, digital reports and files management. 

The Labor Ministry is in the process of certifying technical bodies to develop the REP device. Also, during the first 90 days as of the publication of the Administrative Regulation, the Labor Ministry’s inspectors will be visiting companies to assist employers on complying with the recently enacted regulation. 

Non compliance with any of the determinations or specifications of the Administrative Regulation is considered an infraction and may lead to the invalidation of electronic time register records. Note that in such case, the burden of proving overtime work – which would be originally the employee’s – will probably be shifted to the employer. The non compliance also allows the apprehension of employer’s documents, equipments and programs related to the time register records.

 

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