See what are the rights of those who work on January 25th, São Paulo’s birthday

This Wednesday (25th) is a municipal holiday in São Paulo to celebrate the 469th anniversary of the city. Banks don’t open, and car rotation is suspended. But the Stock Exchange and various services such as malls and supermarkets work normally. How is the right to a holiday for workers who will not be off in the capital?

The municipal holiday is enjoyed according to the company’s headquarters, says Carlos Eduardo Ambiel, partner at Ambiel Advogados. Thus, if the employee’s company is headquartered in São Paulo, even if he works remotely in another location, he is entitled to the holiday.

“If you already live in São Paulo and work in a company in Barueri, for example, there will be no holidays.”

The legislation guarantees workers a break for rest on at least one day of the week and on holidays. Activities considered essential, from categories such as police, are authorized to work. In this case, the employee must be compensated with a 24-hour day off in the same week or double pay.

“There is no forecast for launching work on holidays in a bank of hours, as they are different institutes”, says the specialist in labor law.

That is, if the employee earns R$ 100 per day, the remuneration for his day of work on a public holiday will be R$ 200. This rule, however, does not apply to any overtime hours on the day off, which will be remunerated as weekday: with an additional 50%. In some cases, overtime on holidays is also paid double when there is a collective agreement negotiated by the unions.

Master and PhD in law from USP and professor of labor law at Faap, Ambiel says that for categories that are not authorized to work on holidays, if there is no agreement or convention on the subject, the employer cannot require the employee to work.

There is a list of 122 categories authorized to work on Sundays and holidays, as per the federal government decree published in November 2021.

If there is an agreement, the summoned worker cannot be absent, under penalty of having the day discounted. “First, the employee needs to be scheduled. If he does not show up, he will be absent and lose the day of work plus one day of weekly paid rest, and may even, depending on the recurrence and severity, be suspended or just cause” , says lawyer Eduardo Pragmácio Filho, doctor in labor law and partner at Furtado Pragmácio Advogados.

Professionals who work 12-hour shifts for 36 hours are outside the rules for paid holiday rest.

A WORKER CAN GO TO COURT IF NOT COMPENSATED

The worker who does not receive any type of compensation after working on a holiday, such as double pay or time off, may question the amounts in the Labor Court. According to experts, this is a violation of legislation.

You have to have proof. Among those that are valid in court are time cards. Testimonials from colleagues may also be used in an eventual lawsuit, in addition to photographs and other documents that may prove non-compliance with legislation.

The orientation, 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 in relation to just one day, a labor action should not be proposed”, he says.