GPS, check-in and Article 62, I: when managing the field team becomes proof of working hours

Many companies treat the label "external salesperson, Article 62, I, of the Labor Code" as automatic protection against overtime claims. A recent decision by the Regional Labor Court of the 18th Region (Goiás) shows why that reading is risky, and how the company's own management technology can turn against its defense.

The case: the Article 62, I exception was set aside

An external salesperson claimed overtime. The company argued that he fell under the exception of Article 62, I, of the Labor Code (CLT), for performing external work incompatible with a fixed schedule, and that predefined routes and a sales system would not amount to control of working hours.

The 2nd Panel of the TRT-18 set the exception aside and upheld the overtime award, by unanimous decision, reported by Justice Kathia Maria Bomtempo de Albuquerque. The core point: there were effective means of controlling working hours, and they lay in the company's own tools.

What Article 62, I actually requires

The Article 62, I exception is not a classification by job title or label. According to the ruling, it "shall only apply when faced with working circumstances that, in fact, make it entirely unfeasible to control working hours." It is not enough for control to be inconvenient, costly or impractical. It must be unfeasible.

And there is an additional requirement, often forgotten: the law requires that the condition of uncontrolled external work be recorded in the employee's work card (CTPS) and in the employee register. Without that, the classification is fragile from the start.

The burden lies with the employer

The ruling also repositions the burden of proof. It held that "such control is not a mere option or whim of the employer": controlling working hours is a legal duty (Article 74 of the CLT, subject to the registration threshold of § 2). It was for the company to produce the time records, show that it did not have more than 20 employees, or prove the Article 62 hypothesis (Article 74 of the CLT and Precedent 338 of the TST). It is not the employee who must prove he was monitored; it is the company that must prove monitoring was unfeasible.

The technological rereading of the exception

The reporting justice noted that technological advances demand a rereading of Article 62, I. Tools such as GPS and electronic records make it possible to control the working hours of external workers who, in 1943, genuinely escaped any oversight. The exception was born for a world without smartphones, geolocation or routing apps.

The paradox of digitalized management

Here is the point that matters to managers. The proof of control did not have to be reconstructed from outside. It was in the tools the company adopted to better manage its field team: a sales system with telematic GPS control, a GPS handheld, mandatory check-in and check-out by app at each client, predefined routes, a set number of visits, and a WhatsApp group with supervisors and logistics.

The more the management of the external team is digitalized, the less the company can sustain that working hours were uncontrollable. The same technology that drives productivity also produces the record of the schedule.

What this means for the company

The answer is not to switch off the GPS. That would be absurd and would dismantle commercial management. And the problem is not limited to salespeople: promoters, technicians and installers usually operate under the same design.

The answer is consistency. Either there really is no possible control, and that unfeasibility must be true before it is recorded in the work card. Or there is control, and then working hours must be recorded, managed and paid. The costly mistake lies in the middle ground: using the Article 62, I label as protection on paper while monitoring every step in practice. That design does not protect; it manufactures the proof for the other side.

One dimensioning note for those with commissioned teams: Precedent 340 of the TST limits the overtime pay of a pure commission earner to the surcharge, without the full hour. It does not eliminate the liability, but it changes the arithmetic.

The scale of the decision

It is important to place the reach of this ruling. It is a decision by a panel of a regional Labor Court, unanimous within that panel. It is not a binding thesis nor a nationwide position of the TST. It reflects a reading that has been consolidating as management technology advances. Each case still depends on its facts and evidence.

How the firm works

Reviewing Article 62, I classifications, structuring the working-hour control of external teams and defending companies in overtime disputes are part of the firm's corporate employment practice. Each case, however, depends on its own circumstances, the facts and the documents.

Conclusion

Article 62, I remains valid, but it is not a rubber stamp. It requires genuine unfeasibility of control, and the technology companies adopt to manage their external teams is making that unfeasibility ever harder to sustain. The practical question is simple: if the records from the routing tool, the check-in app and the messaging group are brought into the case file, what will they say about your salespeople's working hours?

Reference basis for review

• Labor Code (CLT), Article 62, I (employee in external work incompatible with a fixed schedule, recorded in the work card and the employee register).
• Labor Code (CLT), Article 74 and § 2, on the duty to control working hours, and Precedent (Súmula) 338 of the TST, on the burden of proof.
• Federal Constitution, Article 7, XIII and XXII.
• Precedent (Súmula) 340 of the TST, on the overtime pay of commission earners.
• Ruling of the 2nd Panel of the Regional Labor Court of the 18th Region (Goiás), reporting Justice Kathia Maria Bomtempo de Albuquerque, which set aside Article 62, I in light of telematic control of working hours.
• Brazilian Bar Association Rule (Provimento OAB No. 205/2021), to preserve the informational nature of the content.

Content of a merely informational nature. It does not constitute legal advice, an offer of services or a promise of results. Any concrete analysis depends on the facts, the documents and the context of each engagement.