Christmas is coming – and the 13th salary is coming with it. In this article you will learn a bit more about one of the employees' benefits settled before Brazil's Military Dictatorship.
The 13th salary was established in Brazil in the 13th of July in 1962, by the Law n. 4,090. At that time, Brazil's president was João Goulart, the last government representative before the Military Dictatorship, which started in 1964 and lasted until 1985.
Goulart determined that every year, in December, all urban, rural or domestic employees should receive a Christmas reward from their employers. This reward aimed at promoting a more thorough Christmas for the employees and stimulating the industry and the businesses, increasing sales and, consequently, the tax collection.
Besides urban, rural and domestic employees, workers ruled by the CLT (Consolidação das Leis do Trabalho or Consolidation of Labor Laws), retirees and pensioners of the INSS (Instituto Nacional do Seguro Social or National Institute of Social Security) or the Social Welfare (Previdência Social) and workers with temporary contract also have the right to receive the 13th salary.
How is the 13th salary calculated?
The 13th salary is an extra salary paid to the employee by the end of the year. Employees who have worked all the 12 months are entitled to receive the full payment; those who haven't will receive the proportional payment. In this case, the total salary is divided into 12 installments and the amount is multiplied by the number of months in which the employee actually worked. So, for example, an employee with a nominal salary of BRL 1200,00 who has worked for 8 months will receive BRL 800,00.
When is the 13th salary paid?
The 13th salary is divided in two installments, each one containing half of the value of the full amount to be paid. One installment must be paid from February, 1st to November, 30th and the other until December, 20th. If the payday happens to occur on a Sunday or in a holiday, the payment must be made in the previous workday. It's illegal to pay the 13th salary in only one installment, under penalty of fine.
It's possible for workers to ask for their first installment of the 13th salary to be paid along with vacation. In this case, workers must make a request to employers during the month of January in order to receive the installment by the time of the employee's vacation, whether it occurs from February to November. If the employee's vacation is in January, employers aren't obliged to pay the first installment in this month, even if it's requested.
Employees who were dismissed for justa causa (when a misbehavior is the justification for the dismissal) don't have the right to receive this benefit. If the employee fired already received the first installment, it will have to be returned to the employer. If the dismissal does not involve justa causa, the employee has the right to obtain the 13th.
Reduction in the 13th Salary
It's considered a full-month work if the employee has worked for 15 days or more in that month. This means that these workers must receive the 13th remuneration. There can only be a reduction in the 13th salary considering the unjustified absences.
The CLT determines that if the employee has an accident at work or in case there is illness aid, the worker will be in non-remunerative license for the period established by the benefit. However, the TST (Tribunal Superior do Trabalho or Superior Labor Court) decided that the absences caused by accidents at work wouldn't be used in the calculation of the 13th salary.
Considering that the TST has an authority over CLT, the calculations of the 13th salary in case of illness or accident at work have these criteria:
Accident at work: computation of the months effectively worked, including the period of license related to the welfare benefit
Illness Aid: computation of the months effectively worked, including the first 15 days of license, whose corresponding remuneration is the employer's responsibility. The period concerning the benefit paid by the Social Welfare is not calculated.
In the calculations of the 13th salary, there will only be considered the time of work before and after the military service.
If the employee receives additional remunerations besides the salary established in the contract, those should be included in the calculations of the 13th salary. Remunerations of extra hours worked, night shift, insalubrity, danger and weekly rest are considered additionals.
13th salary and taxation
The employees who have the right to FGTS (Fundo de Garantia do Tempo de Serviço or Length-of-Service Guarantee Fund) must have the deposit made in their bank accounts until the 7th day of the subsequent month. The amount deposited must be correspondent to 8% of the remuneration.
There is no levy either for the INSS nor the IRRF (Imposto de Renda Retido na Fonte or Withholding Income Tax) in the first installment of the 13th salary. The amount correspondent to these taxes – which are charged normally over the 13th salary – is deducted from the second installment of the 13th salary, paid in December.