Payment of the 13th salary and vacation for those who have a suspended work contract in 2020: know what the Federal Government says

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By Fernanda Falconi

On the 17th of November 2020, close to the payment of the first instalment of the 13th salary (A thirteenth salary, or end-of-year bonus, is an extra payment given to employees at the end of December), the Labor Secretary laid out about the repercussions of the reduction and suspension of work contracts as laid out in the Law 14.020/2020, which created the Emergency Employment and Income Maintenance Program.

This event also took place due to the circulation of a Guidance Note from the Public Ministry of Labor, which was guiding people in the opposite direction to what had already been established, creating doubts and legal uncertainty, especially for professionals in personnel departments and employers.

Therefore, through SEI Technical Note nº 51520/2020 ME, the Ministry of Economy ratified the prevailing understanding, which differed from the guideline note of the Public Ministry of Labor, clarifying and confirming that the legislation prior to Law 14.02 / 2020 must prevail for the purposes of paying the 13º salary and vacations, setting the following principles:

  1. In relation to the calculation of the thirteenth salary and vacation remuneration and constitutional third (in Brazil, workers on a CLT contract have a right to an additional third of their monthly salary in addition to their holiday pay) of the employees who benefited from the  BEm – Emergency Benefit for the Preservation of Employment and Income -, the salary reduction referred to in Law No. 14,020, of 2020, should not be considered.
  2. The periods of temporary suspension of the employment contract, agreed under the terms of Law No. 14.020, of 2020, shall not be counted as length of service when calculating the thirteenth salary and the vacation acquisition period, except for the thirteenth, when applicable the provision of service in a period equal to or greater than that provided for in §2 of art. 1 of Law No. 4,090, of 1962.
  3. Observing the application of the most favorable rule to the worker, nothing prevents the parties to negotiate via collective bargaining agreement, collective bargaining agreement, individual written agreement, or even at the employer’s discretion, the granting of payment of the 13th or count the length of service, including in the field of vacation, during the period of temporary and exceptional contractual suspension (Article 8, § 1 of Law No. Law No. 14,020, of 2020).

With regard to the deadline for the payment of the instalments of the 13th salary, there was no change, with the first installment due on the 30th of November 2020 and the second installment on the 18th of December, including domestic workers.

It should be clarified that the technical notes are not legally binding, but serve as guidelines for action by the Ministry of Economy in any oversight that concerns labor law.