Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
Natália Tenório da Silva
The Regional Court of the 2nd Region held that it is possible to attach salaries to satisfy labor claims as long as the debtor’s livelihood is not compromised.
In a labor claim in which an agreement was reached between the parties and breached by the company, the Claimant requested that letters be sent to CAGED and INSS, in order to verify whether the partners were listed in the records as employers, employees or income recipients and, consequently, the attachment of 10% of net income, if the existence of receipt of earnings was verified, and the request was rejected.
The judge at first instance based his refusal on article 833 of the Code of Civil Procedure, which declares salaries and pensions to be unseizable.
On appeal, the case was referred to the Regional Court, which overturned the decision on the grounds that the same article, in its second paragraph, made an exception to the rule when it came to the execution of maintenance payments, of which labor claims are a type. He also cited case law from the Superior Labor Court in favor of the measure.
In this sense, labor jurisprudence has been establishing itself, admitting the attachment made under the terms of § 2 of article 833 and § 3 of article 529 of the CPC, up to the limit of 50% of the net salary, provided that the defendant is protected from the minimum of 40% of the INSS maximum limit, in compliance with the principles of reasonableness and proportionality.
Thus, the attachment of part of the wages is possible, provided that the judicial constriction does not imply withholding the minimum necessary for the debtor’s subsistence and provided that the measure is requested as a last resort to satisfy the employee’s credit, when all previous attempts at execution have been frustrated.
For this reason, legal assistance is essential for companies to conduct labor proceedings with legal certainty and in a way that is less costly for the debtor, which Marcos Martins Advogados is prepared to provide.
