Professional who works on holidays may have overtime

The employee who is called to work on the two national holidays in April is entitled to receive overtime, with an additional 100%, in most cases. This rule may vary according to the activity in which the person works, and also according to the collective agreement or convention of the category.

There are two national holidays in April: Passion Friday (15) and Tiradentes (21), which falls on a Thursday. Some companies take Holy Thursday (14) off or amend the Friday following Tiradentes (22), but these dates are not holidays — unless otherwise provided for in municipal or state law.

The legislation establishes that employees must have holidays off, but makes exceptions. Some activities are authorized to operate normally on Sundays and holidays, as they are considered essential. Among them are transport services, health and supermarkets, among others.

In such cases, the employee may be called upon to work during the holiday, but must be compensated. The form of compensation depends on what is provided for in the collective agreement (specific for employees of a certain company) or in the collective agreement (valid for the entire category).

Maria Helena Autuori, secretary of the Labor Law Commission of the OAB-SP (Brazilian Bar Association, São Paulo section), says that the general rule is that the employee receives double for the day worked. But agreements and conventions may have alternatives such as:

• Additional with different value (less than or greater than 100%)
• Compensatory time off at another date
• hour bank discount

Lawyers advise you to contact the company’s human resources department and the union that represents the work category to verify the situation foreseen in each case.

HOW IS THE HOLIDAY AMENDMENT

Rafael Lara Martins, master in labor law, says that collective agreements and conventions can also deal with long holidays.

“For some categories, this amendment by Tiradentes is compensated through a bank of hours. You can also have the holiday bridge compensated for another day of work. Another situation is the possibility of the employer releasing the workers without demanding compensation” , says the lawyer.

Martins says that the worker summoned to work on Holy Thursday or the Friday after Tiradentes must attend normally, as these dates are not national holidays.

“If the employee doesn’t show up, he can receive a warning, suspension, or even be fired for just cause, depending on the history of infractions.”

HOLIDAY FOR THOSE WHO ARE IN REMOTE WORK

The rule for those who work from home depends on the type of work, say the lawyers. Martins states that, in cases where there is control of the journey, the employee in remote work has the same rights as the employee in face-to-face work.

The professional must receive the additional overtime or the compensation provided for in the collective agreement or convention.

The employee hired to provide service by production or task, without control of the time worked, is not entitled to compensation. This type of work was regulated by a provisional measure published on March 25.

“The employee hired by service or task can carry out his activities whenever he likes. So there is no way to measure whether he is carrying out his activities on a holiday or at the weekend”, says Martins.