General Employee Rights in Brazil
Even though the law doesn’t require a written employment agreement, it’s highly recommended and common practice to enter into one specifying the terms and conditions as well as obligations that come with the job. Employment contracts can be in two languages (i.e., dual-language contracts) and must include a Portuguese version. The Portuguese version always prevails over the terms in the employment contract in a different language if the issue ever rises.
An employment contract, including the signature of the employer, must be delivered to the employee within 48 hours of starting a new job. The contract should include the following:
- Salary and benefits
- Working hours
- Place of work
- Procedure to offset extra working hours
- Probation period
- Any fixed terms
- Employee duties, such as confidentiality, non-disclosure, and non-compete
- Any compensation duties for damages caused to the employer
- Company policies and standard practices, such as use of equipment and expense reimbursements
- Condition for business travel and relocations
The minimum statutory employee rights are often implied terms that include minimum wage, FGTS entitlement, 13th salary, holiday entitlement, break rights, and any applicable collective bargaining agreements (CBAs).
CBAs with trade unions are automatically binding on all employment contracts. These agreements are valid for a maximum of two years and are negotiated between the employee union and the employer union (or the company itself).
Changes to the terms and conditions of employment are forbidden and void if they are less favourable to the employee.
It’s an employee’s right to receive a copy of their pay slip monthly, with a breakdown of all the deductions involved. The payslip can take a physical or an electronic form.
Employers can make deductions from an employee’s pay in the following circumstances:
- any amounts owed by the employee, such as loans, scholarships, advancements, life insurance, health insurance, meals, transportation expenses, agreements, purchases made at organizations and institutions affiliated with the employer
- any deductions duly authorised by the employee
- the amount equivalent to any losses or damages to the employer’s property caused by misconduct, negligence, imprudence, or lack of the employee’s expertise
Health and safety
It’s an employer’s responsibility to care for employees’ health and safety at work. Companies must take measures to prevent job-related accidents and diseases arising out of work conditions and train and educate employees on how to perform work safely.
Employers must provide employees with the appropriate protective equipment, ergonomic workspace, training, medical examinations, and guidance on how to work safely.
Specific rules vary by industry and company size. They are dictated by the Ministry of Labour and Employment (MTE).
Required Employee Benefits in Brazil
Every employee is entitled to 30 days’ paid time off per year after 12 months of service. On top of receiving their regular salary during the holiday, employees are entitled to a holiday bonus equal to one-third of their monthly salary. This bonus must be paid at least two days before the employee goes on vacation.
Holiday entitlement is lowered if the employee has a certain number of unjustified absences yearly. Employees may request their employers to convert one-third of their unused vacation for the equivalent in cash.
Every employee is entitled to unemployment funds — seguro desemprego — if their employment is terminated without cause. The government allowance varies based on the employee’s salary in the preceding three months and cannot be lower than the minimum wage. The period an individual is entitled to receive the benefit for depends on their tenure.
To be entitled to the benefit, employees must meet the following criteria:
- was employed for at least 6 of the last 36 months
- received at least the minimum wage for the last 6 months
- was dismissed without cause
- didn’t receive any other income from employment or investments
- didn’t receive any government benefits, except for pension, because of a partner’s death or work injury
- Employees who worked from 6 to 11 months are entitled to 3 months of allowance; one year to one year and 11 months, 4 months of allowance; two or more years, 5 months of allowance. If the individual finds a job while they are still receiving the benefit, they must inform the Ministry of Labour so that the benefit can be suspended.
In addition, those applying for the benefit for the first time need to have received a salary from a company for at least 12 months during the 18 months immediately preceding the date of dismissal. The benefit is paid out in four instalments if covering 12 – 23 months, and five instalments if covering 24+ months.
Severance fund (FGTS)
Every employee in Brazil is entitled to the FGTS, an unemployment guarantee fund to which employers contribute 8% of the employee’s gross salary monthly, without any discount to their salary. Employers must open a blocked bank account with the national bank for each employee, where they will deposit their contribution monthly.
Employees get access to the funds when they are terminated without cause, retire, buy a house, or suffer a serious illness. In case of an employee’s dismissal without cause, the company must pay an indemnification equivalent to 40% of the employee’s FGTS balance.
Yearly, every employee is entitled to receive an additional month’s wage also called the Christmas bonus. It can be (1) paid in full by the 20th of December or (2) divided in half and paid between February and November and again in December. Employees may request one-half to be paid along with their vacation bonus.
Employers must provide this benefit to all employees who have worked all 12 months of the year. Those who join the company later in the year are entitled to a proportional fraction of the 13th salary (monthly salary divided by 12 and multiplied by months worked in the year).
The 13th salary can be paid as a lump sum at the end of December or divided into two equal payments: (1) between February and November and (2) by the 20th of December. Employees who are dismissed are also entitled to the pro-rated equivalent of their 13th-month salary.
Employees who must commute home from work are entitled to transportation vouchers provided by their employers to cover the costs of the commute. Companies can deduct up to 6% of the employee’s monthly gross salary to cover the costs of the transportation voucher but must top up the remainder without any additional costs to the employee.
Employees who don’t need to commute, such as remote workers, are not entitled to this benefit.
Employee Protections in Brazil
Protection from discrimination
In Brazil, employers cannot discriminate against employees in any stage of employment — from hiring to promoting and dismissing — based on the following grounds:
- Marital status
- Family situation
Protection against dismissal
In Brazil, employers can dismiss employees without cause as long as they respect the notice period and provide the severance pay. However, they would need to pay a 40% penalty of FGTS. Employers need to justify the dismissal in case of termination with cause only.
However, some categories of employees benefit from additional protection against dismissal for a defined period:
- Pregnant employees from the moment the pregnancy is confirmed to five months after giving birth
- Employees who had a work-related accident or illness, have been away for 15 days or more, and have been receiving social security benefit, for one year from the moment of recovery
- Union leaders that leave their post, for one year
- Employees who have been elected as In-House Accident Prevention Commission members and leave their posts, for one year
- Employees who are one year away from retiring (which should be set forth in a Collective Bargaining Agreement)
- Employees in the mentioned circumstances who are dismissed without cause can take the company to court and be reinstated in their jobs.
Protection in case of business transfer
In Brazil, a period of continuous employment doesn’t create any statutory rights for employees; however, employees retain their period of continuous work as it applies to holiday rights, notice period, and FGTS entitlement. Employees can be transferred between companies of the same economic groups in a merge and acquisition transaction or as part of an asset purchase. The transfer is automatic if it doesn’t interfere with the employment, and the new employer must comply with the labour obligations that were applicable to the previous employer.
The employment terms and conditions cannot be changed as a result of a transfer unless the employee agrees to the change. If the terms are detrimental to the employment conditions, the terms will be considered void. There is no protection against dismissal on a business transfer.
The Lei Geral de Proteção de Dados Pessoais (LGPD), the equivalent to the EU’s GDPR, has recently taken effect in Brazil. It applies to any business or organisation that processes personal data regardless of where that business or organisation itself may be located. There are nine fundamental rights that data subjects have:
- The right to confirm that the data is actually processed
- The right to access the data
- The right to correct incomplete, inaccurate, or out-of-date data
- The right to anonymise, block, or delete unnecessary or excessive data or data that is not being processed in compliance with the LGPD
- The right to the portability of data to another service or product provider
- The right to delete personal data processed with the consent of the data subject
- The right to information about public and private entities with which the controller has shared data
- The right to information about the possibility of denying consent and the consequences of such denial
- The right to revoke consent
Companies have ten obligations when processing data:
- Have the consent of the data subject
- Comply with the legal and regulatory obligations of the controller
- Execute the public policies that are outlined in laws or regulations or are based on contracts, agreements, or other similar documents
- Carry out studies by research entities, which ensure the personal data is anonymised
- Execute a contract or a contract’s preliminary procedures that the data subject is a party to at their request
- Exercise rights in any judicial, administrative, or arbitration proceedings
- Protect the physical safety and life of the data subject
- Protect the health of the data subject in any procedures carried out by either health professionals or health entities
- Fulfil the legitimate interests of the controller unless the data subject’s fundamental rights and liberties, which require personal data protection, prevail
- Protect the credit score
Job Security in Brazil
Until recently, union membership was mandatory. However, union memberships are now optional to employees. Those who join a union must pay an annual fee equivalent to one full day of their wage. Unions are a big part of the employment scene in Brazil, and most industries have collective agreements that provide workers with better benefits.
Employers cannot refuse, impose, discriminate, or treat an employee differently because of their union membership status. Employees are free to engage with whichever trade unions they prefer.