See questions about the 13th for those who had a short-term or suspended contract | Competitions and Employment

• The thirteenth salary must be full for those who have reduced hours, says the government

The full payment is valid even if, in December, the employee receives a lower remuneration due to the reduction of working hours.

No case two suspended contracts, the period in which the employee did not work will not be considered for the calculation of the 13, unless it has been in service for more than 15 days in the month. In this case, the month for payment of the benefit will be considered. The same rules apply to vacations.

• The law authorizes the reduction of hours and wages until December; see questions and answers

Look down the doubts with Eduardo Pragmácio Filho, lawyer, professor and researcher of the Study Group on Contemporary Labor Law (Getrab-USP), Lariane Romano Del Vecchio, lawyer specialized in labor law, Danilo Pieri Pereira, partner of Baraldi Mélega Advogados, and Ricardo Souza Calcini, postgraduate professor at the FMU and specialist in labor and union relations.

How are the 13th and holidays for those who have had a reduced day?

• 13th: received in full, equivalent to December’s remuneration (without considering the reduction)
• Holidays: you are entitled to vacation normally, after 12 months of work, with the payment of the full month plus 1/3

What is the 13th like for who had the employment contract suspended?

• 13th: the calculation is made on the registration salary, relative to December. However, only the months worked are counted, with 1/12 of the salary per month worked. The months worked are those in which the person has worked for at least 15 days. Thus, those who stayed three months with the suspended contract, for example, will receive 9/12 of salary as 13th.
• Holidays– The period in which the contract was suspended does not count towards the holidays. The worker will have the right to vacation after completing 12 months worked. The vacation payment will be total, plus 1/3.

Does anyone who is fired from now on have the right to the 13th and paid holidays in full in the event of a reduced working day?

Those laid off have the right to receive on the 13th proportional to the months worked, as well as vacations, considering the value of the last salary, without taking into account the reduction in remuneration.

How is the situation of the person who received the 13th advance?

The worker who has already received the first installment can receive the supplementation of the difference in the second installment. It will be up to the company to make the necessary adjustments.

Who has been fired and has already received the thirteenth minor, taking into account the reduction in working hours, is they entitled to the supplement to receive the full benefit?

Lariane asserts that the employee who was fired and received the payment of the thirteenth recital for the calculation of the reduced salary amount can bring the matter to the Court for the same reasons as the technical note. In cases of dismissal, approval does not exclude access to the Judiciary. If the worker finds a problem or difference in the amounts owed in relation to what was paid, it is possible to file an action within two years from the date of dismissal.

According to Pragmácio Filho, in the case of those who have already been fired with a different calculation base for the 13th, it is up to the companies to supplement the termination. If they don’t, they may be subject to an individual or collective employment claim.

Is it paid in full on the 13th, even if the worker has reduced the working day in December?

Yes, according to the government technical note. But, for Calcini, there is room for legal discussions that involve the basis for calculating the Christmas bonus, which in the case of a reduction in wages in November and December could not be complete.

Despite the note that cites that the full payment is valid despite the fact that, in December, the employee is receiving a lower remuneration for the reduction of working hours, the lawyer considers that this point could be prosecuted by the companies.

“The most critical point of the note was precisely to avoid a possible attempt to reduce working hours in the months of November and December to pay a lower amount of the calculation base of the Christmas bonus,” he says.

If the technical note does not have legal force, are companies obliged to follow these recommendations?

Pragmácio Filho points out that the technical note does not have legal force, but it is an interpretation made by the body that supervises the companies, so if there is no compliance and if the company does not follow this government guide, it is likely that it will suffer a warning of labor inspection, in addition to suffering individual or even collective labor claims through the union or the Public Ministry of Labor (MPT).

For Lariane, the technical note is a guideline and guide for companies, based on the Constitution, the thirteenth wage law, principles of labor law and summaries of TST.

Calcini understands that this is a guideline that labor relations inspection bodies must observe and a guideline that all companies must follow. And, if any of the parties feels harmed, the natural way is Justice, which will give the last word in the interpretation of the law, and not the government itself.

Pereira states that the worker has the right to claim the difference, but the technical note from the Ministry of Economy has no binding effect, that is, in case of conflict it will be up to the Labor Court to clarify whether the worker has this right or not.

How are the payments on the 13th for those who had a suspended contract?

A worker who had his contract suspended for four months, without working at least 15 days in the month, and with a salary of R $ 2,000 in December, should receive R $ 1,333.33 as the 13th day. If he had worked the 12 months of the year, that amount would have been R $ 2,000. The value of the effect is calculated by dividing the full salary (R $ 2,000) by 12 and multiplying it by the number of months actually worked (after 15 working days).

If the suspension began, for example, on April 1 and lasted until May 30, the employee stopped working for two full months, and therefore those months do not count. But if the suspension began on April 20, the employee worked 19 days that month, then this month counts, because he worked more than 15 days.

• Suspension of contract for three months
• 13th value: R $ 783.75

• Suspension of contract for six months
• 13th value: R $ 750

• Suspension of the contract for four months
• 13th value: R $ 3,333

• Suspension of the contract for five months
• 13th value: R $ 1,166

When will the thirteenth salary be paid?

The first installment of the 13th must be paid before November 30 and the second before December 18.

Who is entitled to 13?

All workers in the public service and private initiative, urban or rural, individual and domestic, as well as retirees and pensioners of the National Institute of Social Security (INSS) are entitled to the thirteenth salary. Workers who, for example, have been in the company for less than a year are entitled to the thirteenth salary proportional to the months worked for more than 15 days.

• 13th salary: see answers to the 13 main doubts of Brazilians

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