Companies deposit the second installment of the 13th; see what to do if you don’t receive

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More than 50 million professionals across the country who work with a formal contract should receive, until this Monday (20), the second installment of the 13th salary. The amount paid is based on the December remuneration and is subject to INSS and IR (Income Tax) discounts for those who are obliged to pay.

According to lawyer Jéssica Prates D’Acunto, from the labor area of ​​Felsberg Advogados, the 13th or Christmas bonus was implemented by law and is a worker’s right. The benefit must be paid in two annual installments. The first between February and November, and the second until December 20th.

Jessica recalls that, this year, with the publication of a provisional measure that allowed the reduction of working hours and wages or suspension of the employment contract, the value may be lower than usual for those who had their contract suspended, so it is necessary to pay attention to this detail when charging the employer, if you have received less.

Under the rule of the Ministry of Labor and Welfare, whoever had their contract suspended will have a 13th salary proportional to the months worked. “The period without working would not be considered, but there are some companies that end up disregarding it and paying the full amount, according to the employee’s right”, he says.

Professor Ricardo Pereira de Freitas Guimarães, PhD in labor law, states that if there was no deposit of any of the installments or if the amount was less than that calculated by the worker, it is necessary to check with the company what happened before reporting the fact to the competent bodies.

“It is important that the employee always try to see if there is a reason for this delay. We just got out of a pandemic and many companies are facing financial difficulties. The conversation is very relevant. It may be just his, that it has occurred a mistake, but it is important that the employee knows the reason.”

Attorney Rômulo Saraiva reinforces the importance of personal negotiation to try to receive what was not paid. “The most civilized and quickest way to get around the problem is talking. Preferably this negotiation takes place in a way that can be proved, through email, WhatsApp emails or even the telephone”, he advises.

If there is no justification for non-payment or the information of a deposit date, the worker can file a complaint with the trade union of the category, with the Public Ministry of Labor, in the channels of the Ministry of Labor and Social Security or go to court against the employer .

“If there is no payment of the 13th and no justification for it, the employee can take some measures such as filing a complaint, seeking the union or the Public Ministry of Labor or, as a last resort, filing an indirect termination with the Labor Court”, says Guimarães .

How to report on the internet

The complaint is made on the website https://denuncia.sit.trabalho.gov.br/home. On the home page, click on “Access form”. For this, you must have a password in the gov.br system. Then enter the CPF and click “Continue”. Afterwards, enter the password and go to “Login”. You will be asked for an authorization to use personal data, click on “Authorize”.

After the initial steps, the employment complaint form will be opened. It already contains the worker’s name, telephone number and email address. If there is wrong data, correction is necessary. You will also need to inform the address of the professional and the company. The worker must say if the identification of the employer will be made by CNPJ or CPF.

It will also be necessary to inform if there are workers in the company who have not been registered. In “Type of complaint”, click on the arrow beside and choose “Thirteenth (13th). In “Description of labor complaint”, inform what happened, if there was no payment or if a lower amount was paid. Then, click on ” Submit report”.

Penalties

Among the punishments for companies that did not pay the 13th salary or paid a lower amount is an administrative fine applied in labor inspection. “The non-payment of the 13th is considered an administrative infraction. So the Ministry of Labor can carry out inspections, even now, on behalf of eSocial, and impose fines on the company”, says Jessica.

Saraiva states that there may also be penalties provided for in the collective labor agreement, which apply both for non-payment and for a lower deposit. “The underpayment can also be the object of a complaint, since the 13th salary must include all amounts of a salary nature, whether variable or not.”

13th salary | Ask your questions

1 – Who is entitled to the 13th salary?

  • All workers with a formal contract are entitled to the 13th salary or Christmas bonus, which must be paid each year, in up to two installments. The right extends to public servants, employees of public companies or government-controlled companies and retirees, pensioners and policyholders who receive disability benefits from a social security agency, be it the INSS, or state, municipal or Federal District pensions

2 – How is the payment made?

  • It is done in proportion to the months worked and occurs in two installments: between the months of February and November of each year, the company has to pay the employee half of the amount that would be due from the 13th salary and then until December 20th of the same year, make the payment of the remaining amount. There are those who pay the first installment on vacation or in the month of the employee’s birthday.

3 – Is there a discount on the 13th salary?

  • Yes. There is payment of social security contribution to the INSS and IR (Income Tax) for those who are obliged to pay the tax. Discounts are made on the second installment, but involve the total amount of the 13th installment, that is, they are calculated on the first and second installment together

4 – Commissions, bonuses and overtime are included in the account?

  • Yes, all salary amounts are considered to pay the 13th salary, including commissions, overtime and other payments. In the case of allowances and gratuities, they are included in the calculation if they occur in the usual way.

5 – How is the calculation of the 13th?

  • The basis for paying the first installment is the month prior to depositing the benefit. For example, if the worker received the first installment on November 30th, the calculation salary is that of October. The December installment is based on the salary for the month of December

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