Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
The Severance Indemnity Fund (Fundo de Garantia por Tempo de Serviço – FGTS ) is a kind of worker’s savings account, in which the employer is directly responsible for payment, through the monthly deposit of 8% (eight percent) of the employee’s gross salary into a specific account administered by Caixa Econômica Federal, by the 7th working day of the month following the month actually worked.
It is worth noting that if the employment contract is related to apprenticeship, and governed by Law 11.180/2005, the percentage of the payment is 2% (two percent), and that for domestic employees, the percentage is 11.2% (eleven, two percent), with both maintaining the scheduled monthly payment date.
In the event of a delay in the monthly payment of the FGTS, a fine equivalent to 5% (five percent) of the amount owed must be observed, if the debt is settled in the same month, or equivalent to 10% (ten percent), if it is settled in subsequent months.
Some Regional Courts have already taken the position that if there is a delay in paying the FGTS on a month-to-month basis, the employer could regularize it even after the worker has left the company, since the latter would only use the amount deposited there at the end of the employment relationship.
This understanding, in turn, would not remove the obligation to pay interest, monetary correction and a fine for the delay, but it would absolve the employer of any recognition of indirect termination of the employment contract for failure to comply with a legal obligation.
However, in a recent judgment, the Superior Labor Court (TST) ruled that the monthly default of the FGTS is capable of giving rise to recognition of serious misconduct on the part of the employer, and may result in indirect termination of the employment contract.
In view of this understanding, the monthly payment of the FGTS is mandatory and, therefore, there is no way to relax the deadlines for its payment, and the employer must diligently comply with the monthly payment of the amount, under penalty of punitive consequences due to the delay, revealed both in the form of a fine and capitalization of interest, and in the form of indirect termination of the employment contract.
