The financial crisis has had an impact on citizens’ pockets and on companies’ cash. This, however, is no justification for the company not to pay the first installment of the 13th installment, which must obligatorily occur by November 30th.
“The deadline must be met by employers in relation to all employees hired by CLT, that is, with a formal contract, with the exception of those who were dismissed for just cause or who have worked less than 15 days during the corresponding year”, says Sérgio Pelcerman, Labor lawyer for Almeida Prado & Hoffmann.
+ 13th salary: First installment must be paid by this Tuesday (30th); see how to calculate
What if the worker does not receive the amount by the end date? “The first step is to make sure that you have not received this amount previously, many companies anticipate the amounts of the first or second installment, and in this case, it does not justify a claim”, warns Richard Domingos, executive director of Confirp Contabilidade.
“If you have not received it in advance and have not received it by November 30th, the worker must contact the company’s human resources or financial sector, notifying the problem. If these sectors do not resolve, what can be done is a complaint to the Ministry of Labor or to the union of your category, in case of unionization. Finally, if this is still not resolved, the last measure is to file an individual or collective action in the Labor Court, charging the debt”, details Domingos.
Pelcerman explains that the non-payment of the Christmas bonus is considered an infraction, as provided for in Law 4,090/62, which may result in a fine of around R$ 170 per worker hired by the defaulting company in favor of the Ministry of Labor.
“In addition, in case of recurrence, the amount of the fine can be doubled and in the event of a collective agreement for each category, the amounts will be due with correction.”
According to Pelcerman, if the employer chooses to pay the Christmas bonus in a single installment, the amount must be paid by the deadline for the first installment, that is, November 30th.
“Finally, those who had their employment contract suspended due to the pandemic, should receive the 13th proportional in relation to the number of months they worked for more than 15 days”, says the lawyer.
“In relation to employees who had a reduction in salary as a result of the pandemic, MP 1.045/2021 allowed such a reduction, but the Ministry of Economy understands that the reduction in length of service and remuneration has no impact on the calculation of the Christmas bonus, which should consider the entirety of the December remuneration”, concludes Pelcerman.
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