It's a fine line between self-employed services and the work with employment ties. Businesspeople must know very well how the law applies in each case to avoid labor risks and court acts.
Different sectors of the economy use sales representation to sell their products and services in order to promote a business expansion. This practice is common in Brazil since the 1950s, when companies started to use this type of professional to reach remote places of the country.
There are some criteria when it comes to hiring a sales representative, though. They are hired as self-employees to provide a commercial relationship of product representation. Lately, however, most companies have been avoiding to hire sales representatives because of the labor risks involved in the contract.
One of the characteristics of the self-employed activity is that it is sporadic. But when it comes to such regular activity like the sales made by sales representatives, it becomes permanent. The problem is that this fact can be used by the company to mask the type of activity that was being made by the person, in order to get a reduction on the labor taxes; or it can be used by the own representative, in litigations, to claim that even with the company hiring him as a self-employed services provider, he worked as a regular employee. That's why it is necessary to formalize all the aspects of the job proposal in a written agreement.
This contract of service provision must contain information such as the description of the work that will be made, the obligations of each part, the terms for the job execution, the payment and how it's going to occur. Besides this contract, the company must also require the Recibo de Pagamento de Autônomo (RPA), which is the document proving that the payment was made.
It's important to highlight that there should be no employment ties between the sales representative and the company. This means that the representative must be free to work for other companies.
According to the labor law known as CLT, there are four requisites that indicate employment ties:
- Subordinação – the employer commands how the sales representatives must perform their jobs; but it's only the modus operandi of the labor work that is subordinated, not the sales representative
- Pessoalidade – the services are provided personally by the worker, being not possible to assign the activity to another person
- Habitualidade – there must be a regularity in the time when the job is done: daily, weekly, biweekly or monthly. It can't be sporadic
- Onerosidade – it's the reciprocity. In exchange for their services, the workers will be remunerated with a salary.
Recently, another item was added to this list: pessoa física. This requisite obliges the worker to be a natural person, which made it impossible for legal people to be hired.
If all the five items are present in the relationship between the employer and the sales representative, there is an employment tie, which obliges the employer to provide other benefits to the worker, such as meal, 13th salary, paid vacations and others. To avoid problems of this nature, workers must not only sign the contract and present the RPA, but also employers must be alert and evaluate if the worker is not meeting the four requirements listed above.