Employee vacations are one of the most common themes in the world of work, but also the most complex. We will try to address the most relevant legal issues for employers, who need to be aware of their duties.
In Brazil, paid leave is a right and a duty of employees: the right to enjoy an annual period without work, but remunerated, and duty not to work in such period.
Employee holidays are considered to be public order occupational health and safety and therefore are irrevocable by the worker. The most that can be there is the "sale" of 20 days of vacations and the enjoyment of 10 days, but not the waiver of such options. In other words, the employee can not not take vacations or sell up to 20 maximum days if he can.
Employee vacations are acquired by the employee with his attendance at work in a period of 12 months, taking as a data base your date of admission. Each month worked or fraction of a month equal to or greater than 15 days, the worker acquires 1 / 12 from proportional vacation, which may have to be paid upon termination, if not for just cause.
For a full-time employee, the number of vacation days purchased is proportional to absences unjustified (read: unjustified for the law) of the employee, being prohibited any other discounts:
|Vacation days||Unjustified absences|
|30||5 or less|
|24||6 to 14|
|18||15 to 23|
|12||24 to 32|
|0||more than 32|
For an employee on a part-time basis, proportionality gives a relation to the journey and not to unexcused absences. If they exceed 7, the employee is only entitled to the half of the acquired vacation:
|Vacation days||Weekly Week|
|18||22 to 25 hours|
|16||20 to 22 hours|
|14||15 to 20 hours|
|12||10 to 15 hours|
|10||5 to 10 hours|
|8||5 or less hours|
A CLT considers justified faults, that is, that the following faults do not count for the purposes of vacation acquisition:
- up to 2 days, due to the death of the spouse, ascendant, descendant, brother or person living under the economic dependence of the worker,
- up to 3 consecutive days due to marriage
- 1 day, for the birth of the child and the week of this
- 1 day every 12 months of work to donate blood voluntarily
- up to 2 days, consecutive or not, for enlistment or election transfer
- to attend compulsory military activities as a reservist
- to perform vestibular tests
- to appear in court
- to participate in an international event as representative of the union
- due to maternity leave or abortion
- accident or illness, duly certified by the INSS, up to a maximum of 6 months (more than 6 months is a chance of loss of vacation)
- not deducted from the salary, that is, paid by the employer
- due to the preventive suspension to respond to administrative inquiry or preventive detention, if unpunished or acquitted
- on days where there was no service, up to the maximum of 30 days (more than 30 days, paid period counts as vacation, being owed by the employer, however, the additional third)
Once acquired, employee holidays must be taken, as a rule, one time on consecutive days within the 12 months following the acquisition, under penalty of being paid in double. The moment of the concession is at the discretion of the employer, but the concession must be communicated in writing to the employee with the minimum advance of 30 days, upon receipt of the employee. The period of vacation should also be noted employee's CTPS and employee records.
The lowest of 18 years has right to take vacations along with your school holidays and family member can enjoy the holidays at the same time if they wish and if it does not harm the business interest.
The beginning of vacations can not Saturday, Sunday, holiday or weekly rest day (ie, rest during the week, when working on a Sunday or a holiday), and payment must be done up to 2 days before of the beginning of the holiday, under penalty of being paid in double.
As an exception, individual vacations can be split into, maximum, 2 periods, where at least one of them must be 10 days running. You can not be fractionated the holidays smaller employees of 18 years and larger than 50 years.
Remuneration of Employees' holidays
Employee leave shall be remunerated on the basis of todas the installments of salary nature usually paid to the employee, according to the amounts in the month of the concession, but 1/3 as additional. The employee thus receives 4 / 3 of his remuneration, at least legally guaranteed. Nothing prevents the contract of employment or collective standard from increasing the additional, but it can not be reduced, given the nature of public policy standard of vacation.
Example: An employee receives minimum wage (R $ 724,00), plus transportation and meal voucher. When you take a vacation, you should receive $ 965,34 (724 x 4 / 3) because the laws that regulate the transportation voucher and the meal voucher, if the company participates in the PAT (Food Workers' Program), provide that these are not of a salary nature and thus do not form the basis for calculating holidays. Note that, in the case of the meal voucher, that the supply of food to the worker is, as a rule, considered to be salary (salary-utility), not being only if provided under the PAT.
Employee vacation allowance ("sale of holidays")
Vacation allowance, known on a day-to-day basis as holiday sales, is only possible for full-time employees. By CLT, the employee has right by law to receive a third of the vacations acquired in cash, instead of enjoying them. Such entitlement shall be required up to 15 days before the end of the vesting period. The payment, as an indemnification, does not integrate the remuneration of the employee for labor purposes.
In addition to the allowance authorized by the law itself, CLT allows employees and employers to agree to the payment of more 10 days of vacations by means of a clause in the contract, collective agreement (collective bargaining agreement) or corporate regulation, totaling, with the payment cool one max possible 20 days possibly subscribed ("sold") and 10 days necessarily enjoyed.
Loss of employee vacations
The employee can only lose the right to vacation if any of the following during the purchasing period:
- leave work and not readmitted within 60 days
- enjoy paid leave for more than 30 days, even if discontinuous
- enjoy paid leave for more than 30 days due to partial or total shutdown of company services
- receive accident aid or INSS sickness insurance for more than 6 months
- missing more than 32 days
It is the role of every manager and employee to know the rules of the employment relationship. This avoids confusion and creates a fair and motivating work environment. If you have questions, comment below. If you want a spreadsheet for employee registration and control, including employee holidays, click here.