Rodrigo Seizo Takano
Machado Meyer, São Paulo
rtakano@machadomeyer.com.br  

Murilo Caldeira Germiniani
Machado Meyer, São Paulo
mgerminiani@machadomeyer.com.br  

Ana Júlia Sales Aragão Bunduki
Machado Meyer, São Paulo
​​​​​​​abunduki@machadomeyer.com.br

Digital nomads are individuals who live combining working remotely and travelling for different periods of time, domestically or internationally, working from anywhere. According to research conducted in 2021 by MBO Partners, 15.5 million US workers currently classify themselves as digital nomads.[1] The number has increased by 42 per cent since 2020 and by an impressive 112 per cent since 2019, when only 7.3 million US workers classified themselves as digital nomads. The research concludes that the number of digital nomads increased due to the Covid-19 pandemic, as it accelerated remote and flexible work.

With the Covid-19 pandemic, technology have become an essential tool to make work possible in a context of social isolation and the shift from a culture of in-person to remote meetings has enabled the provision of services from anywhere in the world. In this context, people have realised it was possible and, in many cases, advantageous, to provide services to a company remotely from another location.

Aware of the increasing number of digital nomads, several countries have issued regulations granting them temporary visas. In Brazil, the National Immigration Board issued Resolution No 45 at the start of 2022 to regulate the granting of temporary visas to digital nomads.

Resolution No 45/2021 defines digital nomads as immigrants who work remotely, and using information and communication technologies, are able to carry out their work activities in Brazil for a foreign employer. Immigrants providing services to a Brazilian employer, whether or not under an employment relationship, are not considered digital nomads, as, in this case, the National Immigration Board’s resolutions require other types of visas.

According to Resolution No 45/2021, digital nomads are required to present an employment/services agreement or some other document that confirms their relationship with a foreign employer, proof of means of living in Brazil by demonstrating a foreign payment source in a monthly amount equal to or greater than $1,500, or availability of bank funds of at least $18,000, and health insurance coverage in Brazil, among others.

The temporary visa for digital nomads is valid for one year, renewable a further year. The number of temporary visas issued in Brazil for digital nomads in 2022 is, however, trifling. According to Brazil’s Ministry of Foreign Relations, as of 13 July 2022, only 100 temporary visas had been issued based on Resolution No 45/2021.

From an employment perspective, however, multinational companies should be cautious when allowing their employees to work remotely from Brazil.

This is because, although Brazil’s employment laws do not apply to digital nomads, as they provide services remotely to a foreign company, if that foreign company has a local subsidiary in Brazil, the local entity could be exposed to risk depending on the way in which services are provided.

If, for example, the digital nomad demonstrates within a lawsuit that they provided services to the benefit of the Brazilian entity, and not to the foreign employer as required by Resolution No 45/2021, the Brazilian labour courts could find that an employment relationship exists directly between the digital nomad and the Brazilian entity.

If such an employment relationship is decreed, the digital nomad would be entitled to all labour and employment rights established by Brazilian law. These might include annual paid holiday leave and holiday bonus, a 13th monthly salary, payments into the Guarantee Fund for Length of Service, benefits established by the applicable collective bargaining agreements, overtime payments (if any). The Brazilian entity, in this case, would be held liable for all such obligations.

To avoid a court finding that the digital nomad is providing services to the Brazilian entity of the group, it is highly recommendable not to allow digital nomads having any connection with the Brazilian entity. Remote working policies should ban digital nomads from working at the Brazilian entity’s offices and the digital nomad should not be subordinated to someone who works for the Brazilian entity, as these factors could be construed as evidence that the digital nomad is working for the Brazilian entity.

The Covid-19 pandemic and the increase of the remote working arrangements have driven new trends in the labour market that transcend borders. Multinational companies, especially those with local operations in Brazil, however, should analyse local rules before authorising digital nomads to work from Brazil, so not to be exposed to labour and employment risks.