Monday, 1 April 2013

New household help laws

So if you haven't heard, the empregada unions have won the right to FGTS. FGTS is a tax that is paid by all employers (up until now, this was not a legal requirement for household help) and is essentially a redundancy pay out. I'm torn over the idea of this being a good or a bad thing for Brazil. If the idea is to move domestic employees into better paying jobs then there needs to be the support in place first before it happens. Training, education, job search agencies, a waiting period instead of changing overnight... There is an estimated 850,000 maids that will be fired because of this new law as families can't afford the rising costs. I'm going to let go of our weekly ironing lady - essentially the money that I pay her would be of more value in extra-hours for my full time empregada. I've come from 2 different backgrounds - growing up in New Zealand where my mother was a full-time mother who gave up her job to look after me and my sisters, to the second part of my life where we had a live-in filipino maid in Hong Kong. I wouldn't call either of these developing countries, so then the argument for Brazil's progress is redundant.

AND after attending the fantastic Women Changing Brazil Symposium the other week, I get my back up because I really want to set up a business here. I'm now trying to wrap my head around how our monthly expenditures are going to shoot through the roof as I try and juggle the children's schedules, keep track of our empregada's working hours, and bake cupcakes all day ; ).

The below information is from Patricia de Luna (our famous lawyer-dentist at the INC) who runs the course on domestic employment for the International Newcomer's Group of Sao Paulo. I blogged here about her presentation on household help last year. You must be a member to join her presentation which will be later this month once the law comes into effect (tomorrow). I would highly recommend becoming an INC member, if anything to have access to this knowledge base. She has kindly given me permission to copy over some of the information below she has been posting on the INC Facebook page (again, you need to be a member), as well as some answers to questions I had at the bottom. If you can't make the workshop at the end of the month (date to be confirmed), I will be blogging about it of course!

* Here is an online calculator to work out how much more you will be spending
** Reuters article on law change
*** More information from Folha, though in portuguese


TODAY, the Brazilian Senate approved the Constitutional Amendment that grants additional labor rights for domestic employees. It is is expected to be promulgated next Tuesday, April 2nd in a session of both houses of Congress.

The new legislation will take effect on that date for all domestic employees. However, some of the rights granted by the new legislation will require regulation and will not take effect immediately.

What rights are expected to be effective immediately?
- Domestic employees may not earn less than minimum wage;
- Salary protection (it is a crime to retain payment);
- Work hours limited to 8 hours per day, and 44 hours per week;
- Overtime pay (50%);
- Legal recognition of collective agreements;
- Reduction of labor risks;
- Differences in salary, tasks and admission criteria based on sex, age, color or marital status are prohibited.
- Discrimination of disabled employees is prohibited.
- Minors under 18 may not work at night or in circumstances that offer danger or health risks. Minors under 16 may not be employed.

What rights are expected to require regulation?
- Compensation in case of unfair dismissal;
- Unemployment insurance and family allowance, to be paid for by the government;
- Additional pay for work after 10pm;
- Daycare assistance;
- Insurance against accidents in the work environment.

No predictions have been made regarding when laws regulating these rights will pass.

How this new legislation will affect employment relations is still unknown and a number of questions have not been answered, including…
- How should you control and document work hours in your home?
- Will overtime pay and additional pay for work at night apply to employees who live in your home?

Please note that these changes are not applicable to independent daily workers, such as faxineiras.

For now, that’s all the information we have. INC is planning a workshop soon, and we will have more information.

Patricia de Luna1 April 18:30

The new law for domestic maids (registered empregadas) will take effect tomorrow.

If you have not done so yet, sit with your maids and revisit their working hours to make sure you are both clear on what those times will be. Beginning tomorrow, work hours are limited to 8 hours per day (plus one hour for lunch, mandatory) and a total of 44 hours per week. It is recommended ( but not mandatory) that you document these hours, either with a simple spreadsheet or by using a "Livro de Ponto" which can be purchased at any office supply store (including Kalunga). The maid should, in her own handwriting, write down what time she arrived, what time she stopped for lunch, what time she came back from lunch and what time she left work and sign it every day. If you do decide to document these hours, please make sure it is documented to the exact minute. A document showing that an employee began work every single day precisely at 8:00am, had lunch precisely from 12pm to 1pm and left precisely at 5pm will appear to be phony.

It is not clear yet whether the 4 hours on Saturdays can be carried over to the weekdays without union approval - we should have more information soon.

At the end of each month, you will need to check how many hours were worked and overtime must be paid with an additional 50%.

It does not look like FGTS will be a concern just yet. It will officially become a mandatory right tomorrow, but will most likely require an additional law to regulate it. If you do not pay FGTS yet, my recommendation is that you do not begin to do so before it is regulated.

If you feel that the cost of having an empregada may be of concern, there is an online cost calculator (see link below) that you can use to estimate what your monthly cost will be. Please note that it is only an estimate, does not include all of the details outlined in the new law and costs may vary.

If you are considering firing your maid, this is the time to do so.

No; to do so is illegal.

There is no legal impediment. However, it may leave room for doubt as to whether the employment relationship continued (ie: fraud) so please consider this with care.

We are waiting for the law to be signed tomorrow and for certain rules to be made clear, so that we may provide you with the most accurate information possible. We expect to have the workshop in late April so watch for the weekly emails from INC!

Some other related information:

Does it still count as time and a half if they are sleeping?

   * No; you will only count the time that is being worked.

Can we carry over hours from week to week?
   * In theory yes. However, it is still not clear whether this will require going through a union to do so, as is the case with other employees.

What if she needs time off for sick child or to go to doctor, do we count hours she has not worked?
    * If she brings proof of her consultation or hospital visit, her absence is justified and those hours cannot be deducted.

Do we add up all extra hours and pay at end of month?
    * Yes - and do document this as such.

Do we pay inss and fgts on total salary including overtime or is just for their base monthly salary?
     * It will be owed on the full amount.

Does she contribute any % to fgts?
     * No - that will be yours to pay. It looks like it will be 8% and it looks like this will not take effect immediatly (it requires regulation by another law), though the empregada union argues differently. Will wait to see how that works out.

Does the employer pay fgts starting month of april? I.e should be included in inss tax book and paid by may 15th for april?
    * See question above. However, the FGTS is not added to the INSS. 

No comments:

Post a Comment