Labor Reform: Analysis Of The First Year Of Enforcement Of Law No. 13,467/2017

After more than a year of the entry into force of Law No. 13,467/2017 ("Labor Reform"), many issues/matters have not yet been judged/pacified by the Superior Courts.

Regarding The Application Of The Rules Of Material Law

To all legal relations constituted or consummated before November 11th, 2017, are not applicable the rules brought by Law No. 13467/2017, in respect to the acquired right, incorporated into the legal patrimony of the employees (article 5th, XXXVI, of the Brazilian Federal Constitution).

Regarding The Application Of Rules Of Procedural Law

The lawsuits filed during the term of the legislation in force prior to the Reform, i.e.; before November 11th, 2017, cannot be affected by the new rules introduced by Law No. 13,467/2017, whenever they establish obligations for the parties or can cause damages to the litigants, in compliance with due process of law, avoiding procedural surprises.

Excepting this premise are rules that do not affect the jurisdictional provision per se and do not cause any material damages to the parties, which may be applied immediately to pending and future acts, in compliance with acts already performed under the aegis of the previous law.

Economic Group

Before the Labor Reform

It was considered an economic group whenever one or more companies - even though each company has its own legal personality - were under the direction, control or administration of another company, constituting an industrial, commercial or other economic activity group. Those companies were jointly and severally liable for labor obligations (the main company and each subordinated company). After the Labor Reform

It is considered an economic group whenever one or more companies, each having its own legal personality, are under the direction, control or administration of another, or even when, even though each one is autonomous, belong to an economic group. Those companies are jointly and severally liable for labor obligations. It does not characterize an economic group the mere identity of members, being, though, necessary to demonstrate integrated interest, effective communion of interests and joint action of its member companies. The retiring partner will be secondary liable for company's labor obligations relating to the period in which he was a partner. The retiring partner will only be jointly and severally liable when a fraud in the corporate change is proven. Status

The mere identity of members does not characterize an economic group, being adopted the case law already set by the Superior Labor Court. The mere existence of family relationship between the partners is not enough for the recognition of the economic group between the companies. To be considered an economic group, there must be an effective communion of interests and joint action between the companies. Paid Vacation

Before the Labor Reform

Vacation could be annually, and only in exceptional cases, granted in 2 periods, one of which could not be inferior to 10 consecutive days. After the Labor Reform

As long as there is the acquiescence of the employee, vacation can be enjoyed in up to 3 periods, one of which cannot be inferior to 14 consecutive days and the outstanding cannot be inferior to 5 consecutive days, each. Status

The segmentation of the vacation period is being accepted by the Labor Courts, peacefully. Bank Of Hours

Before the Labor Reform

Should be adjusted by agreement or collective bargaining agreement entered into with the Union. The accumulated hours could be compensated in the maximum period of one year. After the Labor Reform

Can be adjusted by individual agreement. The accumulated hours should be compensated in the maximum period of one year, if agreed with Union. The accumulated hours should be compensated in the maximum period of 6 months, if agreed directly with the employee. Status

There are no decisions yet regarding this legal matter. Time Of Effective Work

Before the Labor Reform

The time that the employee was available to the employer was counted as effective work. After the Labor Reform

It will not be counted as effective work time when the employee, by his own choice, stays in the company's premises, as well as enters in the company's premises to perform particular activities, among others: religious practices; rest; recreation; study; feeding; social relation activities; personal hygiene; changing clothes or uniforms. Status

The changes brought by Law No. 13,467/2017 do not reach situations already regulated by the previous law, as a result of the principle of non-retroactivity of laws. Part-Time Job

Before the Labor Reform

It was considered part-time job the work which maximum duration did not exceed 25 hours per week. After the Labor Reform

It is considered part-time job the work which maximum duration does not exceed 30 hours per week, without the possibility of additional weekly hours, or even the work which the duration does not exceed 26 hours per week, with the possibility of adding up to 6 additional hours per week. Payment of overtime with an increase of 50% over the normal hourly rate. Overtime may be compensated up to the week immediately following its execution or its payment must be made on the payroll of the subsequent month, if they are not compensated. Status

There are no decisions yet regarding this legal matter. 12x 36 Working Scale

Before the Labor Reform

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