New rules in effect for hiring women, young apprentices and parents of preschoolers

Companies must be aware of changes affecting hiring and work routines

On May 5, the government published a set of labor regulations that introduced new rules for hiring women, young apprentices and parents of preschool-aged children.

Two acts were enacted:

Executive Order No. 1,116/2022	Decree No. 11,061/2022
Established the “Emprega + Mulheres e Jovens” employment program, changed aspects of the CLT and of the “Empresa Cidadã” Program, and extended parental leaves.	Changed several aspects related to the professionalization of adolescents and the youth through professional learning programs.

 

The rules set forth in Exectuive Order No. 1,116/2022 are already in force since its publication date, but the Act must be ratified by the houses of Congress within 120 days of its publication, otherwise the new rules will lose their effectiveness. As for Decree No. 11,061/2022 , most of its norms take effect immediately, but some will be effective only 60 days after their date of publication.

Parental support and flexibility in the workplace

Daycare Reimbursement

Companies may offer daycare reimbursements to employees who have children aged between 4 months and 5 years, in which case they will not be obliged to provide a dedicated childcare place within their facilities for nursing mothers.

It is worth bearing in mind that the amounts paid under this benefit do not constitute salary or wages, nor do they serve as a basis for calculating social security or FGTS contributions, nor can they be considered taxable income for employees.

Release of FGTS installments for daycare payment

The Executive Order also allows FGTS installments to be available for parents so as to help them with daycare expenses. It also establishes the maintenance or subsidization of daycare institutions by Welfare Services.

Workplace flexibilization

The Executive Order introduces several changes to work arrangements for parents of preschoolers. Employers may adopt one or more of the following measures:

• Remote work arrangement for employed parents;
• Part-time work;
• Special arrangement for compensatory time-off;
• 12-hour shift for 36 hours of uninterrupted rest (12 x 36), if allowed by the activity performed;
• Anticipation of individual vacations;
• Flexible clock-in and clock-out times.

The above measures must be made official by means of an individual agreement, or a collective bargaining or employment agreement.

Special arrangement for compensatory time-off

In the event of contract termination, employees under a compensatory time-off program shall have non-compensated accrued hours in their favor paid together with their severance package. If the hours are in favor of the employer, those may be deducted from the employee’s severance pay.

Anticipated vacations

Employees who have not yet completed their acquisition period can also apply for early individual vacation leaves in the first year following the birth of a child or stepchild or the acknowledgement of an adoption or legal custody.

As for anticipated vacations, employers now have the option to pay an employee’s one-third of their monthly compensation up to the date on which the Christmas Bonus is due. The payment of the compensation shall be due by the fifth working day of the month following the start of the vacation period.

Excused absences

Employees can also take the necessary time off to accompany their wives or partners to up to 6 medical appointments or exams during the course of pregnancy.

On top of that, the Consolidation of Labor Laws (CLT) now also allows for a 5-day absence period for paternity leaves. The 5-day period was already provided for under the Constitution, but it did not match the labor legislation then in effect, which formerly stipulated a period of only 1 day.

Temporary layoffs for childcare

Employers will be able to temporarily lay off men whose partners are back to work after maternity leave. In this way, men can provide support to their partners upon their return to work by accompanying the development of their infants.

Contract suspensions must be formalized through either individual agreements, or collective bargaining or employment agreements. Employees will also be eligible for professional qualification pay and may receive a monthly compensatory allowance from employers, which does not constitute salary or wages.

Extended maternity leave

Amendments have also been made to the Empresa Cidadã (Citizen Company) program, which brought significant changes regarding the extension of maternity leaves. Now both female and male employees applying for parental leaves will be permitted to share the same 60-day extension (in addition to the initial 120 days). Companies that joined the program will also be allowed to replace said extension with a reduction of those employees’ workdays by 50% for 120 days, which shall be done via individual agreements.

Incentives for Women's Employment

The Executive Order also introduces changes aiming to promote the employability of women by acknowledging good practices of employers who promote gender equality. A special focus is given to women’s occupation of free positions at autonomous social services, with a priority given to victims of domestic abuse.

Layoffs for professional qualification

Employers can now temporarily lay off female employees, in order for them to participate in professional qualification courses or programs focused on areas deemed strategic or in which female participation is low.

Allowances, compensatory aids and FGTS withdrawals

Female workers will be entitled to a professional qualification allowance to be supported by employers, who may also grant them a monthly compensatory aid, that does not constitute salary or wages. Women will also be able to withdraw money from their individual FGTS accounts to invest in career development.

Incentives for adolescent and youth employment

National Project to Promote the Hiring of Apprentices

The National Project to Promote the Hiring of Apprentices was established, with the aim of bringing more young talent into the labor market while providing assistance to vulnerable adolescents and youngsters, especially those benefitting from the Brazil Aid social program (Auxílio Brasil).

Employers may opt to join the Project, and incentives will be given to those who increase the access of young people to the labor market and hire them for an indefinite period after the expiration of the apprenticeship contract.

In this sense, economic sectors with a low apprentice rate shall warrant a special inspection procedure, aiming at gradually meeting their professional apprenticeship quota.

Changes to the Young Apprentice Program

In addition to the amendments introduced by the Executive Order, the arrangement for hiring young apprentices will undergo important changes resulting from Decree No. 11,061/2022, with a view to promote the right to professionalization of adolescents and youngsters.

New work arrangement

Among the major changes is a new working hours arrangement for apprentices who have already graduated from high school. They will now be able to work an 8-hour shift, as opposed to just a 6-hour shift, as per the legal provision previously in force.

Expiration of apprenticeship contracts

The maximum duration for apprenticeship contracts was extended from two to three years, and exceptional permissions are in place for extending contracts to up to four years for apprentices hired at the age of 14 or 15 or in situation of economic vulnerability.

The age limit for hiring young apprentices will remain at 24, but young people enrolled in professional apprenticeship programs for carrying out jobs forbidden for those under the age of 21 may, exceptionally, work as apprentices up to the age of 29..

For disabled apprentices, the law does not establish a limitation period for contracts.

New rules for compliance with the minimum quotas for the hiring of apprentices

The percentage for meeting the minimum quota for hiring apprentices is unchanged from the previous legislation. Companies must still meet a 5% minimum and 15% maximum of the total of employees who perform functions that require professional qualification.

However, the calculation now excludesemployees under zero-hour contracts and those on leave due to social security assistance. For up to 12 months, apprentices already hired may still be accounted for by companies to meet their quota. This rule, however, is only valid for contracts entered into after May 5th of this year.

Relaxation of sanctions

Companies that have a fine imposed on them prior to joining the Project will enjoy a 50% reduction of said fine, provided that they meet the minimum quota by the end of the period granted.

As for companies against which an administrative proceeding for the imposition of a fine is ongoing, the proceeding shall be suspended during the period granted for compliance with the quota.

For employers that do not meet the professional apprenticeship quota, the fine already provided for in the Labor legislation will remain in force, which amounts to BRL 3,000 per unhired apprentice.

Professional apprenticeship quota

Joining companies that have more than one facility located in the same federate unit may use the sum of the professional apprenticeship quotas of all its establishments together and choose one or more specific establishments to hire these apprentices whenever the total number of apprentices hired in the same federate unit amounts to, at least, 150% of the sum of the minimum quotas of all its facilities.

It should be noted that, for the purpose of meeting the professional apprenticeship quota, the hiring of vulnerable adolescents and youngsters will be double counted, which includes those who:

• are serving a sentence or undergoing correctional measures;
• have a family that benefits from the Brazilian Aid social program (Auxílio Brasil);
• are under institutional sheltering or under the Protection Program for Children and Adolescents Threatened with Death;
• are former child laborers; or
• have a disability.

These companies will also not be fined during the period set for compliance with the quota.

Changes that will take effect 60 days after publication of the Decree.

The majority of the decree's provisions with which employers must comply are already in force, but a few rules will take effect only 60 days after its publication:

Extension of apprenticeship contracts

Professional Apprenticeship contracts, whose duration could not be extended previously, can now be extended for up to four years for apprentices still attending high school. The same applies for apprentices attending professional and technological undergraduate courses, as long as said courses count as theoretical activities pertaining to eventual apprenticeship courses.

Activities performed at institutions that offer methodical technical-professional training

Hiring companies whose facilities or activities performed are peculiar in such a way that they pose an obstacle to the apprentices' practical activities may, in addition to the hypotheses of indirect hiring, carry out such activities at institutions certified for the methodical technical-professional training of apprentices or those aimed at granting them practical work experience.

Average number of workers to be used as a basis for the apprenticeship quota

The professional apprenticeship quota for each establishment shall be calculated according to the average number of workers in each facility whose jobs require professional training under the period established by the Department of Labor and Social Security..

Labor management compliance

The DPC's labor and social security department keeps employers advised as to the best practices for workforce management, ensuring compliance with the rules in force. Count on this support: dpc@dpc.com.br.