Last Tuesday (14), Brazilian President, Michel Temer, signed the Provisional Measure nº 808, which amends some sections of Law nº 13.467 of July 13, 2017 (Labor Law Reform). The new provisions will be submitted to the Senate and the Federal Chamber of Deputies, but they will come into force immediately.

The main innovations are:

12h x 36h (work/rest): adoption of 12×36 schedule through collective bargaining agreement only, expected by the entities of the health sector, which may adopt it by means of an individual written agreement.

Moral damages. Quantification of the indemnity. The amount for the definition of compensation for moral damages is the maximum limit set for the benefits of the General Social Security Regime (at present R$ 5,531,31) instead of the employee’s monthly salary. For instance: slight offense – up to 3 times this amount and highly grave offense – up to 50 times this amount. The judge may double the amount of compensation in case of recidivism. Indemnity resulting from death is excluded from these limits.

Pregnant and nursing mothers. As a rule, the pregnant employee must be moved from an unhealthy to a healthful environment during the pregnancy, without the payment of health hazard allowance.

• Minimum or medium level: possible to render services during pregnancy upon presentation of a medical certificate authorizing work under these conditions.
• Nursing mothers must be removed from an unhealthy environment in any level upon presentation of a medical certificate recommending the removal.

Self-employed worker. Possibility of contracting a self-employed worker, continuously or not, with no employment relationship, provided that formal requirements are met.

• The Provisional Measure prohibits the establishment of an exclusivity clause and provides that a self-employed worker may not be deemed an employee for providing services for a company only.
• Professionals of categories governed by specific laws (for instance, commercial representatives and real estate agents) will not be deemed employees, provided that formal requirements are met.

Intermittent labor contract. The main innovations in relation to the regulation of the intermittent work are the following:

• The value per hour or day of work cannot be less than the proportional minimum wage, ensuring the compensation of night work higher than that of daytime work;
• The payment date shall be defined in the contract and may not be fixed for a period exceeding one month if the rendering of services exceeds one month;
• Establishment of general conditions that may be agreed in the contract, such as: workplace; shifts in which the employee can be called; forms and instruments for calling and responding; forms of reciprocal reparation in the event of cancellation of services previously scheduled.
• Establishment of the term of one year for the automatic termination of the contract and determination of how to count that term.
• Prohibition of hiring employees dismissed in the last 18 months by means of an intermittent work contract. Prohibition up to 12/31/2020.

Compensation. Bonus payments for posts qualified as positions of trust are part of the employee’s salary for legal purpose. The amount paid as allowances is not part of the compensation and does not constitute basis of incidence of labor and social security charges only when limited to fifty per cent of the monthly employee’s compensation.

• Regulation of the payment of tips, including paragraphs 12 to 21 in the section 457 of the Brazilian Labor Code. Definition of “prizes” as goods, services or payments freely granted, up to twice a year, by the employer to the employee or group of employees, or third parties related to company’s activity due to an extraordinary performance (above regular expectations).

Limits to the representation of employees at companies. Unions must be part of collective bargaining agreements, as it is their duty to defend the rights and collective or individual interests of the category.

Prevalence of collective bargaining. Parties may define the health hazard level by means of a technical expert investigation. The labor union signing the collective bargaining agreement must be part of the claim in the event of a class action aiming the invalidity of any clause of the agreement, which cannot be challenge through individual claims.