Legal Framework for Working Hours in External Work
External work is recognized when employees perform their duties predominantly outside the employer’s premises and the nature of the activities makes it incompatible to establish a fixed working schedule consistent with how the work is performed. The law also requires formal registration of this classification both in the employee’s personnel file and in the Digital Work Card (Carteira de Trabalho Digital).
When all legal requirements are met, employees covered by the external work exception are not subject to any working hours control system. As a result, they are not entitled to overtime pay, even if their activities exceed eight hours per day or forty-four hours per week.
Technological Transformation and Its Impacts on External Work
External work has been profoundly transformed by telematics tools and digital technologies. Electronic reports, corporate digital systems, instant communication tools, and especially geolocation mechanisms have become part of routine business operations. Although originally introduced for administrative or logistical purposes, these tools have indirectly revealed that employers may have direct or indirect knowledge of employees’ work routines.
This transformation has influenced Labor Court decisions, particularly concerning the burden of proof. The central debate now focuses increasingly on who must prove the possibility of working hours control: the employee claiming overtime despite performing external work, or the employer asserting that the role is incompatible with any form of direct or indirect hours monitoring.
The Landmark Case and TST Theme 73
An emblematic case originating from the Regional Labor Court of Bahia was brought before the TST as representative of a national controversy for uniform interpretation of the matter.
The plaintiff, a sales executive, alleged that he worked long hours. Although he performed various activities at distributors’ facilities, the company maintained that he engaged in external work incompatible with hours control.
In the first and second instances, the courts concluded that the activities were incompatible with working hours control. The Regional Court also held that the burden fell on the plaintiff to prove that his routine was monitored — a burden he failed to meet.
Upon reaching the TST, the high volume of similar appeals and divergent interpretations among the Regional Courts led to the selection of the case as the paradigm for Theme 73. In that judgment, the TST broadened the interpretation of Article 62, I, of the CLT, which refers to the incompatibility of external work with working hours control. The Court held that the exclusion from the hours control regime applies only when the employer demonstrates the impossibility of monitoring the employee’s working hours, even if no effective control is actually exercised in practice.
The decision consolidated an understanding already applied by the TST for years, although not always uniformly in the lower courts.
Practical Impacts of Theme 73 and Evidentiary Challenges
Employers now have the duty to demonstrate that no direct or indirect means exist that would allow control of external employees’ working hours. In practice, this requires proof of the absence of any viable means of monitoring working time.
Applications with check-in and check-out functionalities, electronic visit records, systems with time-stamping, structured reports via WhatsApp, and predefined routes have been considered by recent second-instance decisions as evidence of the possibility of working hours control, thereby excluding the classification under Article 62, I, of the CLT. Conversely, some decisions have examined elements such as generic WhatsApp messages, vehicle mileage tracking, and order management systems lacking temporal correlation, concluding that such tools do not demonstrate working hours control.
New Developments in the Discussion and the Relevance of TST Theme 300
Despite the resolution of Theme 73, the debate on external work continues to evolve. A new discussion submitted to the TST gave rise to Theme 300, which remains under review.
The Theme examines two central issues: whether collective bargaining clauses that eliminate the obligation to control working hours for external employees remain valid in light of the statutory exception in Article 62, I, of the CLT, and whether the mere possibility of indirect monitoring would be sufficient to invalidate both the collective agreement and the statutory classification.
Depending on the outcome, Theme 300 may redefine the evidentiary landscape: if the TST upholds the validity of collective agreements even in the presence of indirect monitoring tools, part of the burden of proof may shift back to employees; otherwise, Theme 300 may reinforce the understanding established in Theme 73 and further restrict the application of the external work exception.
No judgment date has been set, but the impacts of Theme 300 will likely define the next chapters of this debate and influence how companies structure and document external work going forward.
Conclusion
Theme 73 has been widely criticized for altering the legal standard established in the CLT. Although the statute refers to activities incompatible with working hours control, the TST now requires the employer to prove the impossibility of monitoring working hours, significantly increasing companies’ evidentiary burden and raising concerns that the exception may, in practice, become difficult to apply.
Theme 300 may restore greater legal certainty by defining the validity and normative force of collective agreements, as well as the relevance of indirect monitoring tools. Until the matter is definitively settled, companies are advised to review how external work is performed and monitored, including the activities carried out, communication flows, and technological tools used.
