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the salary of Brazilian employees in 2020 were reduced or even completely suspended due to the pandemic. Therefore, the value of 13th salary of many could be affected in 2020.
According to the experts heard by R7, whoever has the contract suspended will receive only the amount referred to the months worked. In addition, it is not yet known how the payment will be for those who have had a salary reduction.
A Provisional Measure (MP) which has established guidelines on changes in working hours, allows the employer to suspend the employment contract for up to six months. Additionally, the employee may experience a salary reduction.
Minister Paulo Guedes said that the program should be extended until the end of 2020, that is, the suspension of the contract can last up to eight months in total.
Calculation of the thirteenth salary
The calculation of 13th salary at the end of the year, as it happens every year, it is done as follows:
- The salary is divided by 12;
- The previous result is multiplied by the number of months worked.
In the calculation, the employee is still entitled to include overtime and other types of additions that he received during the year in which he was employed.
For example, whoever receives the amount of R $ 2 thousand and the contract is suspended for six months, for example, would receive R $ 1 thousand corresponding to the thirteenth salary. Whoever had the contract suspended for eight months would receive R $ 664.
According to the law, the month worked is the month in which the employee performed professional functions for at least 15 days. See how salary payments number 13 are made:
- The 1st installment is paid until November 30;
- The 2nd installment is paid until December 20.
Suspension of contract
According to Fecap Tiago Slavov, professor of accounting sciences of the program, the employee who stays six months without working, the reduction of 13 could reach up to 50%, since the value of 13 is calculated according to the number of months worked.
If the program is extended for another two months, the 13th salary It will be calculated considering four months worked.
According to the guest of the FGV Law Program of the Getulio Vargas Foundation, Ciro Ferrando, the suspension of the employment contract does not suspend the employer’s obligation to pay the employee’s thirteenth salary.
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According to the labor lawyer of Rocha Marinho E Sales Advogados, Lucas Cavalcante, an employee who had a salary suspension from April 1 to April 30, will not have the month counted in the calculation of the 13th, since the person has been without work throughout the entire period.
“If it is suspended for 180 days, the employee can receive up to half of the thirteenth at the end of the year,” says Cavalcante.
The months of April and May will be counted as integral months for the purposes of calculating the thirteenth salary, if:
- the employee had the contract suspended for 30 days, from April 16 to May 14
- who worked, at least 15 days in each month (April and May)
Salary reduction
There is a possibility that, for employees whose wages and working hours have been reduced, the PM could have an impact on the value of the bonus at the end of the year.
For Ferrando, “this depends on the duration of the reduction agreement.” According to law number 4,090 / 62, which regulates the rules of this payment: “the bonus will correspond to 1/12 of the compensation owed in December, per month of service, of the corresponding year”
“Taking into account the express wording of the text of the Law, it would not be incorrect to conclude that the thirteenth salary will be based on the December salary, regardless of whether it is reduced or not. This implies that if the employee has a reduced salary in December, the thirteenth salary will be calculated based on the reduced amount and not on the full salary. As for those employees who have recovered their working hours and their remuneration before December, the 13th salary will be paid respecting the full and not reduced remuneration, ”says Ferrando.
According to him, it is also possible that the entrepreneur adopts the criterion of the average of the last 12 months instead of the reduced value in December.
According to Slavov, it is also possible that the employer considers the salary described in the contract when making the calculation.
“The biggest controversy is that the legislation is not so clear. A more conservative measure by the employer, considering the base salary, is adequate to avoid occupational risks and also in terms of contract suspension ”, Slavov guides.
What the government says
According to information from the Special Secretariat for Social Security and Labor, the MP did not modify the form of payment of the thirteenth salary and the situation may vary according to each specific case.
“Law N ° 14.020 / 2020, which instituted the BEm, did not modify the way of calculating the labor budgets provided for in ordinary legislation, and its provisions established criteria for the payment of a compensatory benefit in the situations contained therein, not covering the 13th.
It is worth mentioning that, given the freedom of negotiation between the parties (exercised collectively or individually), the agreements signed based on the founding law of the BEm can establish a large number of possibilities in the specific case. Thus, each case may be different according to what has been agreed ”, says the folder.
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