Working on the 7th of September holiday guarantees double overtime; understand

Professionals who need to work on the holiday of September 7, when Brazil’s Independence is celebrated, may receive double overtime, in accordance with the rules of labor legislation. The payment of amounts, however, is conditioned to what the collective bargaining agreement says.

According to lawyer Eduardo Pragmácio Filho, from Furtado e Pragmácio Advogados, Brazilian law prohibits work on national holidays, as is the case with 7 de Setembro.

However, some categories are allowed to work. These are the activities considered essential, which involve health, industry, commerce, transport, energy and funeral sectors, among others.

“Working and getting paid for that day is a right”, says lawyer Maurício Pepe De Lion, from Felsberg Advogados.

The overtime of work performed on Sundays and holidays has a different calculation, that is, it must be paid in double. On normal days, when the professional works overtime, he must receive, for each additional hour of service, 50% of the remuneration.

In the case of holiday service, payment is 100%. “The value of overtime is considered by paying the value of the regular hour plus an additional 100%, which means that if I work one hour I will have to earn for two hours”, says Pragmácio Filho.

Lawyer Tomaz Nina, a partner at Advocacia Maciel, states that article 67 of the CLT (Consolidation of Labor Laws) allows work on Sundays and holidays in essential areas, but it is necessary to have a rotation schedule organized on a monthly basis, so that workers have weekly time off.

According to him, in addition to the time off, collective agreements and work agreements also allow activities carried out on holidays to be part of a bank of hours. Anyone who has doubts about the rules should look for the union of their category.

Boss can call professionals to work

Pragmácio Filho says that the boss can summon the worker to a normal working day, as long as this measure is agreed and follows the rules of the legislation, that is, it is in a collective agreement and does not go against the CLT.

According to Pepe De Lion, the call-up must be justified. “We have some situations. It could be, for example, because of the pandemic, companies that went through great difficulties are recovering, they now need the employee’s work during the holiday.”

Worker can go to court if not compensated

The worker who does not have any type of compensation after working on a holiday, such as double overtime, time off or bank of hours, can seek the Labor Court. According to experts, this is a violation of labor legislation.

For that, you need evidence. Among those that are valid in court are the time cards that indicated that the employee worked on that specific holiday and did not have double payment and compensatory time off, explains Tomaz Nina.

Testimonies from colleagues may also be used as a witness in an eventual process, in addition to photographs and other documents that may prove non-compliance with the legislation. The guideline, however, is to negotiate.

For lawyer Maurício Pepe De Lion, from Felsberg Advogados, the best way is to talk. “Trying to negotiate is the best way. If there was any disagreement regarding just one day, a labor action should not be proposed”, he says.