The second salary installment will be paid from the thirteenth to the nineteenth of this month to formal contract workers, public service employees, pensioners and pensioners of the National Social Security Institute (INSS) or the special systems of states, municipalities and the Federal District.
By law, employers have until December 20 to pay the second installment – or the full amount, if they have not deposited the first – but since this year it falls on a Saturday (December 20), when there are no banking hours, payment must be made in advance.
Some experts believe that if the full amount is paid, it must be done by November 30. This year, the date fell on a Sunday, and the filing was brought forward to Friday (28th). However, there is another group that claims that there is no specific date in the law and, as a result, the understanding is that the deadline to pay all dues is December 20, under penalty of fine.
Lawyer Ruslan Stuchi, partner at Stuchi Advogados, recalls that the thirteenth day is a benefit guaranteed by the Federal Constitution. It is noteworthy that if the company does not pay the Christmas bonus, the worker must contact the Human Resources Department or the employer itself to request a settlement.
She says: “If there is no agreement or full payment of the amounts due, the worker can go to court and file a lawsuit to collect the amount.”
Carla Velgueras, partner at Montenegro Castelo Advogados Associados, adds that if an employer does not meet the 13th payment deadlines, the employee can, in addition to filing a formal complaint with Human Resources, report the violation to the Ministry of Labor and Employment.
“In addition, the employee can file a complaint with the General Ministry of Labor or file a labor complaint to demand payment. In cases where there is a complaint to the MTE or MPT, the employer may be subject to an administrative fine, which is doubled in the event of a repeat violation,” she says.
The expert points out that the employer does not have the right to stop paying the thirteenth salary, even if a financial crisis occurs. He says: “Payment is a legal guarantee, and compliance with it is mandatory, and therefore omission constitutes a labor violation.”
How is the thirteenth account calculated?
For those who were already with the company or were hired until January 17, the value of the first installment from day 13 is exactly half of the salary. However, if overtime, night shift, or commissions are paid frequently, the premium may be higher, as additional payments must be made.
For professionals hired as of January 18, the 13th will correspond to the working months. In the case of someone who has at least 15 working days per month, the full portion must be taken into account for calculating the benefit.
The return value takes into account the basic salary plus the annual average overtime, night shift wages, unhealthy work, dangerous work, etc., and commissions. For variable salaries, such as for salespeople for example, the bonuses are added together and divided by the number of months until pay.
The basis for paying the first installment is the month preceding the thirteenth deposit. For example, if a worker will receive the first installment on November 30, the salary calculation is October’s salary.
How is the second payment calculated?
Both the first and second installments of the thirteenth salary must correspond to half the value of the salary. However, in the first, there are no discounts. In the second, all statutory deductions are made, including income tax, for those obliged to pay, and the INSS contribution.
The calculation rule follows the same as the down payment. If you’re already at the company or hired by January 17, you’ll get the full amount, for 12 months, split in half. If overtime, night shift, or commissions are paid frequently, premiums may be higher, as additional payments must be made.
For professionals hired as of January 18, the 13th will correspond to the working months. In the case of someone who has at least 15 working days per month, the full portion must be taken into account for calculating the benefit.
The return value takes into account the basic salary plus the annual average overtime, night shift wages, unhealthy work, dangerous work, etc., and commissions. For variable salaries, such as for salespeople for example, the bonuses are added together and divided by the number of months until pay.
Who deserves the thirteenth salary?
Workers employed by the CLT (Consolidation of Labor Laws) are entitled to the 13th position, both urban and rural, including domestic and casual employees, as well as pensioners and pensioners of public bodies and social security.
What do I do if I don’t get the 13th?
Lawyers Karla Villgueiras, partner at Montenegro Castelo Advogados Associados, and Ruslan Stuchi, partner at Stuchi Advogados, said that if there is a delay or non-payment of the Christmas bonus, the worker can report the employer to the Ministry of Labor and Employment, the General Ministry of Labor or the category union.
It is also possible to take action before the Labor Court to collect the amounts to be paid with monetary correction.
There is also the possibility of the worker terminating the employment contract due to failure to pay and obtain work rights, as is the case in unfair dismissal. This type of dismissal is called indirect termination of the contract, and it is as if the employee was fired and the employer was fired for the employer’s just cause.
In addition to judicial penalties, the company may be punished with administrative fines that double in the event of a repeat violation, and an additional fine of 10%, if the class agreement or collective agreement so stipulates.