Q&A: Tortoro, Madureira & Ragazzi
Author: Caio Medici Madureira
1. What are the key labour laws and regulations that govern the employer-employee relationship in Brazil?
In addition to the Federal Constitution, which provides an exemplary list of social rights in article 7, the main and most important regulation governing the employment relationship is the Consolidation of Labour Laws (CLT). In such law it is possible to find the consolidation of all the norms that regulate the relationship between capital and work.
2. Can you explain the rights and obligations of employers and employees under Brazilian labour law?
The rights and duties of employees and employers are numerous. As an example, the part of the CLT that governs the employment relationship has more than 625 articles, many of them with paragraphs and subparagraphs containing autonomous provisions. However, in general terms, employees and employers have reciprocal rights and obligations. The employee has the duty of obedience, assiduity, punctuality, collabouration, and respect for the internal norms created by the employer, loyalty, confidentiality and non-competition. They must obey the direct orders of the employer, as long as they do not constitute a crime or violate the legal system. On the other hand, the employer has the right to freely direct the provision of services, give direct orders to the employee, demand punctuality and attendance, as well as demand productivity from the employee in exchange for the monthly wage consideration. Both the employer and the employee must respect the labour law and always base their conduct on contractual good faith.
3. What are the common types of employment contracts used in Brazil, and what are their key features?
The most common employment contracts are the employment contracts for an indeterminate period and the probationary contract. They have similar characteristics, the only difference is that the contract for an indefinite period is the one that is carried out without a prior fixed duration and its termination depends on the need for a declaration by either party upon prior notice of at least 30 days. The experience contract has a fixed period of a maximum of 90 days and subject to resolute conditions. The purpose of the experience contract is to understand whether the hired employee has personal conditions to occupy a certain position in the company. At the end of the trial period, if the employer understands that the employee has not passed the probationary period, the contract may be terminated without the need for prior notice and payment of rights such as prior notice and land fine.
4. What are the legal requirements for termination of employment in Brazil, including grounds for dismissal and severance pay?
There is no legal requirement for termination of employment, for either the employer or the employee. It is not necessary to give reasons for termination, it is sufficient for either party to notify the other of its desire to terminate the contract. If the dismissal is without reason and comes from the employer, the following rights are due: 13th salary and proportional vacation, salary balance, indemnified prior notice and a fine of 40% on the Service Time Guarantee Fund (FGTS) balance. If the termination comes from the employee, the employer does not need to pay the indemnified prior notice or the 40% fine on the FGTS.
5. Are there any specific laws or regulations in Brazil that govern working hours, overtime, and rest periods?
Both the Federal Constitution and the CLT provide for a working day of eight hours a day and 44 hours a week, with a paid day off a week, preferably on Sundays. The CLT provides for the need to grant a daily break of one hour for meals and rest and the possibility for the worker to work up to two hours of overtime daily. It is necessary to grant a rest of at least 11 consecutive hours between workdays.
6. How does Brazilian labour law address issues related to vacation, holidays, and other leaves of absence?
Vacations is annual and 30 consecutive days, and may be divided into up to three periods at the employee’s request. The vacation time is the one that best suits the interests of the employer. Employees must rest on holidays, but there are economic activities that have special authorisation to work on holidays, and the employer must grant another day off or pay the workday with an increase of 100% on the hourly rate. There is a legal provision for numerous dismissals, worth mentioning maternity leave and leave due to illness or work accident. These licenses count as a service provision period and are remunerated.
7. Can you explain the process and requirements for hiring foreign employees in Brazil, including work permits and visas?
Every foreigner who decides to enter Brazil needs a valid visa in its passport, but after authorisation granted to the company, the law obliges the professional to request a temporary visa from the Ministry of Foreign Affairs. The company must request a work permit from the General Coordination of Immigration (CGI), an agency of the Ministry of Labour created to regulate the entry of workers from abroad. The foreigner must obtain a work and social security card and apply for registration in the Individual Taxpayers’ Registry (CPF) with the Federal Revenue Service within 90 days. Without these documents it is not possible to proceed with the contract.
8. What are the legal obligations for employers regarding workplace health and safety in Brazil?
Employers are required to follow a series of regulatory guidelines on occupational medicine, health and safety. Under article 200 of the CLT the Ministry of Labour may establish additional provisions on occupational safety and medicine, and in the exercise of this prerogative, there are currently 38 Regulatory Norms (NR) that are autonomous and mandatory for employers to discipline the subject.
9. Are there any specific laws or regulations in Brazil that address discrimination, harassment, or equal employment opportunities?
Yes, there are countless legal diplomas that deal with the subject. The Constitution and the CLT generally provide for legal mechanisms to combat discrimination. In addition to these norms, Law no. 9.029/1995 prohibits discriminatory practices for the purposes of admission or permanence of the legal employment relationship. Also Law no. 14.611/23 deals with the promotion of inclusion and the encouragement of female empowerment.
10. Can you provide guidance on resolving labour disputes or negotiating employment contracts in Brazil?
Labour disputes can be resolved extra or judicially through mediation, conciliation or arbitration techniques, both at the individual level (employee and employer) and collectively (dispute between companies and unions or between unions). With the exception of senior executives, employment contracts commonly signed in Brazil are by adhesion, that is, employers establish contractual obligations and wage consideration, and it is up to the employee to accept or refuse the job.