Have questions about the lay-off? JE answers your questions

Are you in lay-off and want to see some of your doubts clarified? Send your question to economize@jornaleconomico.pt and ask your question. See it answered in this article.

 

Can the worker take a marriage license during the layoff regime? Or does the company have to wait for the end of the layoff measure so that it can take the marriage license?

Without prejudice to any special regime possibly provided for in a collective labor regulation instrument applicable to the company in question, the Labor Code establishes that a worker has the right to give 15 consecutive days of absences at the time of marriage, which are considered justified and even , without any loss of remuneration.

Indeed, if the worker in question is integrated in a lay off regime in the model of suspension of the employment contract, he is not obliged to perform his activity, which determines that, during this period, the time spent in the organization / wedding celebration and / or honeymoon should not be classified as absences.
However, already if the lay off model is the activity reduction, and if, during that period, the worker does not come to the service on the days when it was required, absences will be justified as long as they are given in the period of 15 consecutive days at the time of the wedding. In this regard, we take the opportunity to mention the justification will only be achieved if the employee fulfills the duty of prior notification of absences, with a minimum of five days in advance (here it is assumed that we are facing a predictable absence).

(Reply from Luís Branco Lopes, Lawyer and Founding Partner of BLMP)

I left a company on 07/02/2020 and joined another company on 10/02/2020. On 16/03/2020 due to this situation of COVID the store closes reaching the end of March I received my salary as if I were working. In April, half of the month was vacation and the other half the company supported the costs by paying again. And in May I enter Lay Off all month, entering in June to work normally.
My question here is: Do I have the right to receive or not? This is because my colleagues at the company, being in the same conditions, except that they have been at the company for a longer time, have already received it and I haven't yet.

According to what we were able to understand, when Mrs. Mónica said that in June she entered the service “working normally”, we found that the lay-off regime was no longer in force. If such a conclusion is correct, and provided that its activity is provided on a regular basis and in compliance with the duties imposed on workers, we have found no reason to legitimize the company to proceed with any suspension or reduction in the payment of its salary. Thus, and since your colleagues have already earned the remuneration, we recommend that you verify that this is not an administrative lapse associated with salary processing, before taking any legal or administrative action.

(Reply from Luís Branco Lopes, Lawyer and Founding Partner of BLMP) 

I started working at an entity on January 7, 2020, an uncertain term contract, 35 hours per week and a 180-day trial period. In April I was informed that the entity would go into a simplified lay off and that there would be a 90% reduction in hours. In June I returned to work and was told that my contract was going to be terminated during the trial period, on June 24th. I was asked to take a vacation until July 3rd. In the meantime, I signed up for the IEFP and checked the contributory career in direct social security. The information that is conveyed by social security is that the contributory career will not suffer penalties however in April there are only 4 days of discounts and in May around 700 €, when my salary was 1.071,00 €. My question is in order to understand if the discounts were well made since they have implications in the contributory career as well as in the calculation of the daily value attributed in the form of unemployment benefit.

A preliminary note to mention that when Ms. Liliana Silva mentions having signed an open-ended contract, we believe that she intends to mention a “work contract for an indefinite period” because if it were an open-ended term, the trial period could not exceed 30 days (which would make the June 24 report invalid and classified as an unlawful dismissal).

In fact, the lay off does not create any loss in your contributory career since equivalences are recorded in your contributory career for the amount corresponding to the difference between your normal remuneration and that actually paid by the employer, which includes the remuneration and the remuneration for work performed when there is room for it (as was the case).

Indeed, in order to be able to comment on the regularity of discounts, we would always have to access the remuneration statements submitted by the company to Social Security. However, if there is, in fact, as it seems, a non-conformity, we suggest that you contact the company and, ultimately, resort to judicial and administrative means to claim the replacement of your rights.

(Reply from Luís Branco Lopes, Lawyer and Founding Partner of BLMP)

I work at a gas station and at my station we went into lay off the months of April May June however I in February for reasons of illness I did not work 2 days with justification from the family doctor what happens is that now in the SS they tell me no do I meet the requirements to receive because I didn't work the whole month, is that law? Even because if I worked less days, the salary was lower and not higher?

Assuming that the question raised concerns the stabilization complement, we can say that there is no express reference in the text of the law to the obligation of the worker to have worked (without absences) throughout February. What the law provides is that the worker whose basic remuneration for the month of February 2020 has been equal to or less than € 1270,00 will be entitled to the stabilization supplement and that, between April and June, has been covered (at least one full calendar month) under the simplified layoff scheme or the layoff scheme under the Labor Code. Since the complement will have the value corresponding to the difference between the amount of the basic remuneration declared in relation to the month of February 2020 and the full month in which the worker was covered by one of the aforementioned measures in which the greatest difference was verified, without prejudice to the limits minimum and maximum. Thus, there is no legal provision that conditions the attribution of the stabilization supplement to the employee's attendance during the month of February 2020.

(Reply from Sílvia A. Araújo, Lawyer at RSN Advogados) 

I would like, if you can, to clarify some questions regarding the layoff process. I am in partial layoff with a 50% working time reduction. I receive a basic salary of € 954.59 plus a function premium in the amount of € 300 (I receive other values ​​but they are variable, as commissions) and according to what I understand the two values ​​are used to calculate the partial layoff value, right? I've read that all values ​​come in, but I've also been told that it should be just the base salary. So I would give a value of € 1254.56 of salary, with the reduction of the working period I have a cut of 50%, being discounted the value of € 627.30. The job premium is paid to me only for 11 months (not paid in June), so my salary was only the basic salary (954.59 €), but the discount made by reducing the working period was the same as in the months previous, that is, € 627.30, wouldn't it be expected that this value would be different?

Assuming that a period of reduction of the normal working period before 01.08.2020 is at stake, inserting the question and corresponding answer within the scope of the simplified layoff, provided for in DL nº 10-G / 2020, 26/03, the worker has the right to retributive compensation to the extent necessary, in conjunction with the remuneration for work performed in or outside the company, to ensure the minimum monthly amount equal to two thirds of the gross normal remuneration or the value of the guaranteed minimum monthly remuneration, whichever is higher. Thus, if the worker saw his normal working period reduced by 50%, he will be entitled to receive 100% the 50% of the hours actually worked, plus, as compensation, the amount necessary to reach the value corresponding to the two thirds of normal gross remuneration (which in this case will be the highest amount).
In response to the question about the retributive values ​​that should be considered for the purposes of calculating 2/3, it should be noted that the legislator uses the expression “normal gross remuneration”, which contrasts directly with the expression “base remuneration and seniority” used in various situations throughout the Labor Code. We thus understand that the legislator intended to use a broader concept than just basic remuneration and seniority. In fact, in DL nº 46-A / 2020, 30/07, which provides for the extraordinary support of a progressive resumption of activity in companies in a business crisis situation, which replaced the simplified layoff, the legislator, using the same expression “normal retribution” illiquid ”for the purpose of calculating the remuneration compensation, it has now been made explicitly clear that it includes a set of regular components normally declared to social security and usually paid to the worker, relating to basic remuneration, monthly premiums, regular monthly allowances, meal allowance and night work.

(Reply from Sílvia A. Araújo, Lawyer at RSN Advogados)

I am about to be hired by a company, but the future is very uncertain and the company will not know if we will be in full operation in the last quarter of the year. The question is - can I be put on lay off if the company's activity is reduced? Are there any obstacles to hire and after a month ask for lay off? I am trying to look at the issue from both sides of the employee / employer, deep down so that our employment relationship is in fact by mutual agreement.

With the information that we have, we can say that, in principle, as long as the company fulfills the necessary requirements for this purpose, it will be able to resort to extraordinary support for the progressive resumption and activity with temporary reduction of the normal period of work, not considering for this purpose the seniority of the worker (s) concerned. Nevertheless, the legislative production that is being verified, with regard to labor law, is such that it is not possible to determine, with absolute certainty, what may or may not be done in the coming months.

(Reply from Sílvia A. Araújo, Lawyer at RSN Advogados)

 

The company where my partner works sent him home under the simplified lay-off, having made this communication via email. However the lay-off was disapproved or they did not even request the lay-off and they told him that he will have to replace the 2 weeks he was at home. This is cool? 

The written communication to the worker, by the employer, indicating the foreseeable duration of the period of time that he will be subject to the simplified lay-off regime (suspension of employment contract or temporary reduction of the normal period of work) is, in itself only, sufficient for the worker to be integrated in the referred regime, provided that the requirements for the effect are fulfilled (DL nº 10-G / 2020 of 26/03).

It is the employer's responsibility for any and all statements to fulfill the requirements for access to exceptional and temporary job protection measures, within the scope of the COVID 19 pandemic, and the beneficiary entities may therefore be subject to inspection, a posteriori, by the competent public entities.

However, without prejudice to the lack of elements that may impair a more assertive response, the following will always be said: the worker in a simplified lay-off regime after the employer communicates, means that he is at the employer's disposal whenever he call to provide service in the company.

The worker is entitled to the compensation for his work (basic remuneration and other regular and periodic benefits, including food allowance if he is entitled to it), earning the normal amount for each day of work performed.

Thus, assuming that the simplified lay-off regime required (suspension of employment contract or reduction of the normal working period), it was not approved by the competent entity, as all the requirements for this purpose are not met, due to an imputable fact The employer cannot, therefore, be liable to the employer for reasons of interest when the employee, induced in error, merely complies with the employer's orders when communicating his / her integration in a simplified lay-off regime: therefore, the worker has the right to his remuneration, since he went home due to the imposition of the employer who informed him of his integration in the simplified lay-off regime (article 309 no. 1 point b) of the Code Labor.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

I've been on lay-off since March 25th with a suspended contract. I have worked in the company on a shift basis for 25 years. The monthly salary when in service includes: basic salary + shift allowance + night hours + seniority + attendance premium. In lay-off I have only been paid on the base salary + seniority. I ask; Should the calculation not cover all these items?

The value of the lay-off remuneration is equivalent to 2/3 of the normal gross remuneration and is marked within the legal limits: i) the Minimum Guaranteed Monthly Remuneration (RMMG = 635 €) or the amount of the remuneration corresponding to your normal working period if lower than RMMG and ii) as a maximum limit triple the RMMG (3 x 635 € = 1.905 €).

The labor legislator did not clarify what should be included in the remuneration provision, and the respective standard is difficult to understand and implement.

Thus, in the case at hand and in the best opinion, the remuneration to be paid to the lay-off worker, in addition to the base salary, must include shift allowance, night work allowance and seniority allowances.

As for the attendance bonus, its inclusion in the concept of remuneration may be questionable, taking into account the data reported to us, if it is not guaranteed in advance, that is, for example, be expressed in the employment contract (article 260 1 (c) of the Labor Code).

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

The company for which I work for 16 years entered into a lay off regime on April 1 and has been extending the lay off. Information about the extension of the lay off has been sent to employees by e-mail, the last of which was until 28 July. It turns out that in May I made the letter of termination of my contract giving 60 days notice as required by law. The letter reached the employer on 29 May. Did the 60 days of notice end at the end of July or will this period be counted after the period after the end of the lay off?

It should be noted that the lay-off regime, whether or not simplified, does not conflict with the parties' rights, duties and guarantees or prevent any of the parties from terminating the contract in general terms (article 6, paragraph 2 and 3 of DL no. 10-G / 2020, of 26 March and article 295 no. 3 of the Labor Code).

However, it is not insignificant to know, in the present case, whether the lay-off regime operates by temporary reduction of the normal working period or by suspension of employment contracts, since: in the first (reduction) regarding these matters they apply the rules of the Labor Code; in the second (suspension) the maintenance of the rights, duties and guarantees of the parties, only remains as long as they do not presuppose the effective performance of the work.

As for the 60-day notice period, enshrined in Article 400 of the Labor Code, it is up to the employee to communicate or not to the employer, who intends to terminate the employment contract, within the period for that purpose, being certain that if he does not do so, he runs the risk of having to pay the employer an amount equal to the basic salary and seniority corresponding to the period in question, without prejudice to compensation for damages caused by failure to observe the notice period or obligation assumed in pact permanence (Article 401 of the Labor Code).

In short, except for a better opinion, the deadline for termination of an employment contract on the employee's initiative (prior notice to the employer for the purpose of terminating an employment contract on the employee's initiative) runs in general terms, without any interference from the special legislation in the scope of the COVID pandemic 19.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

If the notice period starts immediately from May 29 and since I was covered by the company's lay off regime until July 28, am I entitled to receive the amount of the lay off salary?

The worker covered by the simplified lay-off regime (under DL 10-G / 2020 of 26 March - lay-off between end of March until end of June, and of DL 27-B / 2020, of 19 June - lay-off extended until 31 July) you are entitled to receive a minimum amount equal to two thirds of your normal gross remuneration (without discounts) that you would receive if you were working normally or the amount of the minimum guaranteed remuneration, whichever is more high, up to the limit of three times the minimum guaranteed remuneration (article 305, no. 1 and 3 of the Labor Code applicable through article 6, no. 4 of DL 10-G / 2020 of 26 March) .

In the present case, and since no further elements have been made available to us, it will always be said: i) during the lay-off period, the employee will exceptionally receive her salary under the aforementioned terms and limits, however, the right to receipt of holiday and Christmas allowances, which are always paid in full (article 306, no. 1 and 3, Labor Code). It should be noted, however, that during the closing of accounts this year, the worker, with regard to these allowances, has the right to receive the respective proportional.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

I was working normally in my workplace (office) the whole month of June, but on June 26th my employer warned me that I was going to put that same month on layoff. They forced me to sign a document as I was in June in layoff. They paid me and sent me the salary receipt with the reduced amount. Can they do that? What should I do in this case? This does not seem to be correct since I worked normally until the 26th.

Having the worker provided service to the company during the normal period of time, it is not questionable his right to normal remuneration corresponding to the hours in which he provided service and was hired, since it is the duty of the employer to pay on time the remuneration which must be fair and adequate to work (article 127. Labor Code).

The implementation of the lay-off regime has no retroactive effects, so it only operates after the employer sends or delivers written communication to the worker where it is indicated in what terms the lay-off regime will be implemented, which workers are covered and what is its foreseeable duration, so the worker can only be integrated into the lay-off regime after knowledge of the aforementioned written communication.

Failure by the employer to comply with the obligations related to the support implies the immediate cessation of the same, as well as the refund or payment (Social Security Institute, IP and Institute of Employment and Professional Training, IP), total or proportional of the amounts already received or exempted, namely, when false declarations are made (article 14, no. 1, point f) of DL 10-G / 2020, of 26 March), without prejudice to the application of the legal sanctions provided for the respective offense .

In the simplified lay-off regime, the beneficiary entity can be supervised, a posteriori, by the competent public entities (article 3, no. 2 of DL 10-G / 2020, of 26 March), namely, by the Authority for the Working Conditions, which, in this specific case, you can communicate to the Social Security Institute, IP, if it is found that there is a violation of the legal rules for this purpose, notifying the entity receiving the support to proceed with the return of the support that you have unduly received.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

I got married in July (15 days of justified absences and not holidays!) And I was working. Can the company put me on layoff during that period, the license period?

Article 249 of the Labor Code provides that absences given during 15 consecutive days due to the effect of marriage, correspond to justified absences.

In turn, the general rule found in paragraph 1 of article 255 of the Labor Code states that the justified absence does not affect any right of the worker, with due exceptions in paragraph 2 of the same article (illness of the worker; accident at work; assistance to a family member; absence authorized or approved by the employer; monitoring of pregnant women for the delivery of the child, and even the absence that by law is considered as such when exceeding 30 days per year).

Now, in the present case, the worker only mentions that she was working, that is, fulfilling her job performance, without explaining why she is working, when she could be enjoying the 15 consecutive days that the law grants her in virtue of marriage.

In view of the above, except for a better opinion, considering that the 15 consecutive days to which the worker is entitled due to the effect of marriage, frame the right to be considered justified absences, and that the lay-off regime depends on an objective cause, and can be unilaterally imposed by the employer, maintaining, however, the rights, duties and guarantees of the parties unaltered, it will always be said that, whether or not the worker enjoyed the aforementioned days for reasons of marriage, integration in a lay-off regime does not offer any doubt, that is, the worker can, yes, be included in the referred regime, even if she is enjoying these days or not, and her salary as long as the referred regime is in force, marked within the legal limits (635 € and 1.905 €).

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

I am currently in a lay-off in an industry that will hardly return to normal. For that reason, I intend to employ myself in another area that is not considered the front line. Since the salary is identical to what I receive at the company being in lay-off, I know in advance that my employer will end the 2/3 allowance.
My question is whether, upon terminating the contract with the second company, whether due to unsuitability or my own option, can I return to the lay-off as it was? Just inform the company? Will it be accepted again or can the company terminate my term contract?

According to article 6 of Decree-Law no. 10-G / 2020, in conjunction with articles 304 and 305 of the Labor Code, the layoff worker can perform a paid activity outside the company during this period.
To this end, Sílvia must communicate this fact to her company within five days from the start of the new activity, with the reduction of her retributive compensation. It is very important that you make this communication, otherwise you will lose the right to this compensation completely, you will have to refund what you received under this title and you may still be subject to disciplinary proceedings (as this omission constitutes a serious disciplinary infraction).
It is true that a diploma (Decree-Law no. 14-F / 2020) was promulgated that determines the absence of this reduction if workers exercise this other activity in one of five sectors: social support, health, food production, logistics and distribution.
As it is not the case with Sílvia, then this reduction will be exercised.
As for the return, Sílvia can return whenever she wants, but informing the first company of the duration of this second activity and must return, at least, at the end of the layoff. The first employer cannot fire you for having worked
elsewhere during the layoff period, as it is a right that the law gives you.
The important thing here is that you comply with the legal procedures indicated, making it clear that this other remunerated activity comes from this legally provided right, and therefore is not a termination of the contract with the first company.
Finally, I would like to draw your attention to the fact that this mention of mine is related to a possible dismissal for the aforementioned reason (ie, second paid layoff activity) - nothing preventing the company, at the end of its contract, from communicating that it does not want to
renew it, for having ended the justification of the temporary hiring (for example. Replacement of a casualty worker or exercise of seasonal activity).

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

 

I have a question regarding the layoff. I have been in layoff since April, I received a registered letter from my employer and via email, mentioning that the layoff would continue until 31 July. But then I got a call from my boss saying that I have to go to work on July 15th. After receiving the letter, can the layoff be lifted at any time? How does that change my salary?

In this situation, it is important to understand if your work from 15 to 31 was still within the layoff or if it ended up being lifted earlier - it can end at any time, as long as it is properly communicated to Social Security (and, of course, the workers) .
If it was still in the layoff, then it is important to understand the regime you were in - since if your contract was suspended, Carla should not be working. If it was changed to reduced working hours, it is already different.
While in the layoff, either of the two: either the contract is suspended and you receive 2/3 of your salary, or you are reducing working hours and the salary is paid proportionally to the hours worked.
As soon as the layoff ends, the compensation and social security contribution will end and Carla will receive all of her monthly salary again (and, of course, she will work normal hours).
Therefore, assuming that from 1 to 15 you are in layoff (with a suspended contract) and from 16 to 31 already in a normal situation, then your salary would be processed differently, namely earning 2/3 from 1 to 15 and 100% of 16 to 31%. Giving you an example, if your monthly salary
was € 1000,00:
- From 1 to 15: received € 333,34
- From 16 to 31: received € 500,00
- Then you would receive a total of € 833,34 for the month of July
At the end of the layoff, Carla's duties and rights also end (including the right to exercise remunerated activity outside the company).
Finally, I advise you to confirm with Social Security if you are entitled to the so-called “Stabilization supplement”, attributed to those who:
a) Works for others;
b) Wage income reduction for having been in layoff;
c) Has been on layoff for at least one full calendar month between the months of
April and June;
d) Earn a base remuneration that in February 2020 was equal to or less than
twice the RMMG (ie, 1.270,00 euros).

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

 

Being on layoff, and taking vacation days, how do you pay for those days? Do I get 100%? For example, if in one month I have 10 days off and the rest on layoff, will I receive 66% of all days at the end of the month, or 100% of 10 days and 66% of the rest? I already know that the allowance is paid in full (it has even been paid to me before), but I still haven't figured it out in relation to the vacation days themselves.

Layoff time does not affect the expiration and duration of the vacation period. Furthermore, it does not affect the booking and enjoyment of holidays, in general terms, with the worker entitled to payment by the employer of the holiday allowance due under normal working conditions. The 10 days of vacation referred to are, however, subject to the layoff regime applicable to the other days of that month.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

I am a manager with an additional hourly exemption. If I am in partial layoff, can the company withdraw this supplement? Was it correct to have removed the hourly exemption supplement while the company was in a simplified layoff?

During the period of reduction or suspension, the worker has the right to receive monthly a minimum amount equal to two thirds of his normal gross remuneration, or the value of the minimum guaranteed monthly remuneration corresponding to his normal period of work, whichever is higher . The normal gross remuneration includes basic remuneration and other regular and periodic payments, as is the case of the supplement for exemption from working hours. Therefore, the company cannot fail to consider the complement due to hourly exemption, even if it is in a layoff situation.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

 

I've been on layoff since April. My company (store) has already opened but I was still in a layoff. Now they want to make me take a vacation. There was no scheduled vacation for any of that period but they want to impose the 11 days. This is cool? Am I obliged?

In general, the vacation period is marked by an agreement between employer and worker, and in the absence of an agreement, the employer marks the vacation, which cannot start on the worker's weekly rest day, after hearing the commission for that purpose. workers or, failing that, the inter-union commission or the union commission representing the worker concerned. The employer prepares the vacation map indicating the start and end of each employee's vacation periods, until April 15th of each year and keeps it posted in the workplace between this date and October 31st. Due to imperative requirements for the operation of the company, the employer can change the vacation period already scheduled or interrupt those already started, with the worker entitled to compensation for the losses suffered by not taking the vacation in the scheduled period.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

 

I was in layoff and I was called to work this month (August) at 50% by signing a paper that until the 31st of the same would be working at 50%, or 20 hours a week. Today I arrive at the company and I was presented with another paper where it is said that after August 12th I would be working at 80%. Is it possible for the company to do this by changing schedules to what is most convenient?

The exceptional measures envisaged for the business crisis situation target cases that can seriously affect the normal activity of companies and require the indispensability and adequacy of such measures to ensure the viability of companies and the maintenance of jobs. For this reason, whenever it is found that the assumptions that led to the layoff have not been verified or have ceased, a term should be put in place or this should be appropriate to the circumstances. Thus, regarding the question asked, the employer must proceed accordingly.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

 

If a worker is in a partial lay-off situation with a reduction in weekly working hours, can the employer choose to rotate for each employee each month in order not to overload them during the six months of lay-off?

Yes you can. It is the employer's responsibility to establish the reduction period applicable to its workers, in general or individually. It is also your responsibility to select workers who are covered by the layoff. In this way, it is possible for the employer to opt for a system of monthly rotation of its workers who are covered by the reduction of weekly working hours.

(Replies José Maria Castelo Branco, partner at CLA - Sociedade de Advogados)

I need to clarify whether workers who have so far benefited from the simplified lay-off regime, and since they are in the meantime exercising another activity outside the company in an area of ​​social support, more specifically logistics and distribution, can thus, similarly to what was it already foreseen in the simplified regime, to be covered by the new support for the progressive recovery (DL 46 A / 2020) and to receive cumulatively the salary of the logistics and the remuneration compensation related to their main job in tourism (reduced hours)?

Under the terms of no. 6, in article 4, of Dec. Law 46-A / 2020, of 3 August, during the reduction of the normal working period (PNT), it is possible for the worker to exercise another paid activity. However, as referred to in paragraph 7, of article 6, of Decree Law 46-A / 2020, of 3 August, if the employee carries out or will carry out remunerated activity outside the company, he must inform his employer of this fact for effects of a possible reduction in compensation. Contrary to the exceptional regime that was established in paragraph 9, of article 6, of Dec. Law 10-G / 2020, of March 26, for the so-called simplified layoff and which excluded the eventual reduction of the retributive compensation if the second activity was provided in the areas of social support, health, food production, logistics and distribution, the legal regime applicable to the Support for Progressive Resumption does not provide for an equal exclusion. Thus, even if the second remunerated activity is provided in the areas of social support, health, food production, logistics and distribution, the amount of the respective remuneration will be taken into account for the purposes of reducing the remuneration compensation.

(Replies José Maria Castelo Branco, partner at CLA - Sociedade de Advogados)

I was in full layoff from April 1st to the end of July. I had scheduled 15 days of vacation for July, which I enjoyed. I would like to know what the amount to receive in the month of July in addition to the holiday allowance, is it the same as in the other layoff months or in the fortnight that I was on vacation, is the calculation different?

During the vacation period, if taken simultaneously with the layoff period, the worker will be entitled to receive his salary and / or retributive compensation, in the same amount that he would receive if he were not on vacation. In other words, he receives with the reduction that may be due to the layoff, as he will have happened in the other months in which he worked under the layoff regime. As for the vacation allowance, it will be paid without any reduction, in the same amount that would be due under normal working conditions, as if the layoff regime was not in force.

(Replies José Maria Castelo Branco, partner at CLA - Sociedade de Advogados)

I received a registered letter with acknowledgment of receipt from my company that joined the Extraordinary Support for the progressive resumption from August 1st and during a period of one month, the beginning was of simplified lay-off and in that letter came the information that we could take a photo with our signature and so I did. In this second letter from the company he says nothing. Do I send a letter with acknowledgment of receipt to the company with my signature? And if so, how long do I have to send the letter? 

For the purpose of applying the measure of Extraordinary Support to the Progressive Resumption of Activity, the employer will have to communicate, in writing, to the workers to cover, the percentage of reduction and the expected duration of application of that measure. A similar procedure was also required for the measurement of the simplified layoff. There is no legal requirement that this communication be signed by the worker. However, it will be good practice on the part of the employer to ask the worker to, in some way, certify that he was aware of this communication, such as, for example, by signing a copy of the letter or sending a photograph of the document already signed by the worker. It will be up to the employing entity, within the scope of its management power, to establish the procedure it deems most appropriate to have confirmation that the employee has received the communication. Thus, the employer may require the signature of a copy of the letter and the delivery of that original and may establish a reasonable period for that purpose. Obviously, the procedure created by the employer cannot be disproportionate, abusive or unjustified.
 
(Replies José Maria Castelo Branco, partner at CLA - Sociedade de Advogados)

I was in lay-off from 20 May until 20 June and I received the letter with this information. Then I again received a new letter stating that the lay-off period had been extended by another month until July 20. However, they called me to go to work on the 1st of July until 10. And then I was back on lay-off until 20 pm. Is this possible? Did I have to sign a paper for going to work those days? Is there a minimum time in advance when the company has to inform us about our (early) return to work?

All changes in the “lay-off” modality must always be communicated in writing to workers, especially as they have an impact on the employment relationship and the provision of work. The different communications addressed to the worker must be made in writing and in advance, and must contain the duration of the layoff regime and the modality (or reduction of the normal working period or suspension of the contract); If there is any change - as was the case - the criteria defined by law must be observed and the worker must always be informed in writing. These changes are relevant, for example for the purposes of remuneration and hours, just to mention a few. Changes in the lay-off modality, under the terms of the legislation in force, depend on the observance and fulfillment of the criteria defined by law. (* answer given based on the legislation in force at the date indicated in the question)

(Responds Alexandra Abreu Lopes, Labor lawyer at AFA Advogados) 

I am a heavy truck driver and I was in lay off from April 20th to July 18th for three months. My question is whether in the end the employer can make me go on vacation? My employer put me on lay off on April 20 but I was only notified on April 18 by phone, and I received the letter by mail. I was already on lay off on the 20th. Is it possible without notifying in advance? If not, can I complain?

The employer may, whenever there are reasonable reasons to change the leave period of its workers. (Article 243 of the labor code). Thus, it is possible to change the vacation period already scheduled or interrupt those already started due to imperative demands of the company's operation, with the worker entitled to compensation for the losses suffered by not taking the vacation in the scheduled period. As for the question regarding the decision to apply the layoff regime, it must always be communicated, in writing and in advance to the workers, especially because it has an impact on the employment relationship and the provision of work. This information is relevant, for example, for the purposes of remuneration and schedule, just to mention some. The communication addressed to the worker must, therefore, have the duration and the modality (or reduction of the normal period of work or suspension of the contract); If there is any change (or modality or extension of the measure), the criteria defined by law must be observed and the worker must always be informed in writing. However, it should be noted that, as in the regime provided for in the Labor Code, the “simplified layoff is applicable to workers even without their agreement. (* answer given based on the legislation in force at the date indicated in the question)

(Responds Alexandra Abreu Lopes, Labor lawyer at AFA Advogados) 

I work at a company that joined the simplified lay off due to the pandemic. I'm in the third Lay off and this time the company has defined 24 hours of work spread over 3 days of the week, Tuesday, Thursday and Friday. There was a week that, due to holidays, it changed the working days to Monday, Tuesday and Friday in the delegation where I work, but in others it left as previously defined, leaving some differences in terms of working days. What I want to know is whether this is possible or not. What is described in the letter that was sent is that it would be 24/40 per week only the subsequent one that verbally defined the working days.

The company, in case of reduction of the normal working period, in the scope of the simplified lay-off, is obliged to inform the worker of the working period in which he will start to perform his activity (here integrating the number of hours per day and per week). However, we are of the opinion that, in this communication, there is no obligation to define the specific working hours, with reference to the specific days of work provision (information that should appear on the work schedule, duly posted at the company) .
In relation to the change in the concrete days of provision of activity in a given week, as it appears, as it seems to us, a change in the concrete hours of beginning and end of the normal working period, this represents a real change in the working hours.

In effect, regarding this change in working hours, the Law establishes that the employer can only implement it, unilaterally, if the time has been determined by you alone (and not by agreement with the worker, as in this case the change presuppose the consent of the latter).

Even if the employer is qualified, as it was seen, unilaterally, to change the working hours, this hypothesis lacks (i) consultation with the workers involved and the workers' committee (or, failing that, with the union, inter-union or union delegates), (ii) as well as the posting of the change to the company (with the new map) 7 days in advance of the start of its application (or 3 days in the case of companies with less than 10 workers).
However, taking into account that, in the case described here, the change in working hours did not, it seems, last longer than one week, the Law provides an exception, in the sense that it only requires the company to register this alteration in its own book, mentioning that the structure of collective representation of workers was consulted (without, therefore, having to check the posting with the aforementioned advance). Note, however, that this exception only applies if the employer does not use this scheme more than 3 times a year.

(Replied Luís Branco Lopes, lawyer and founding partner of BLMP)

In the context of the doubts raised in the lay-off, I would like to put one to which I have not identified an answer. I have a micro company, having decided not to put any employee in lay off (despite the clear reductions in receipts). I am aware that lay-off companies will obtain a monetary benefit from the IEFP after the lay-off period. I come to question whether companies that have tried hard not to have lay offs will have an equal benefit?

The legislation that regulates the simplified lay-off regime provides an incentive for the normalization of business activity by each worker covered by the simplified lay-off measures.

Thus, the aforementioned legislation limits the right to this incentive to companies that have benefited from the aforementioned regime, either for the extraordinary support for the maintenance of the employment contract, or for the extraordinary training plan.

Thus, it should seek to analyze other measures that, although not related to the lay-off, turn out to be extraordinary supports, now implemented due to the current pandemic.

(Replied Luís Branco Lopes, lawyer and founding partner of BLMP)

 

I would like to know in a gross salary of € 820.00 what is the monthly amount to receive in lay off?

In this case, the worker does not indicate the modality of the “simplified” lay-off regime in which she is inserted - suspension of the employment contract or temporary reduction of the normal period of work - nor the number of hours of her work performance. In the absence of concrete information, we will assume that the worker works 40 hours a week and earns a gross monthly remuneration of 820,00 euros. In this case, the worker has the right to receive the amount of 635,00 euros as compensation for compensation under the “simplified” lay-off regime. This financial support is fixed under the terms of paragraph 3 of article 305 of the Labor Code, and determines the right of the worker to receive a monthly amount equivalent to 2/3 of her normal gross remuneration or alternatively the value of the minimum guaranteed monthly remuneration (RMMG in 2020 is 635,00 euros), whichever is higher. In the present situation, 2/3 of the value of 820,00 euros totals a value lower than the amount of 635,00 euros established in the RMMG, so the compensation is adjusted to the value of 635,00 euros. Of this amount, 30% (190,50 euros) will be borne by the Employer, and the remaining 70% (444,50 euros) by Social Security. It should be noted that the amount of the monthly installment due in a “simplified” lay-off is subject to contributions to Social Security by the Employee (11%), which is why the amount that is strictly owed totals 565,15 , XNUMX euros.

(Respond to lawyer Catarina d 'Orey from C'O Advocacia e Serviços Jurídicos)

 

I would like to know if the employer is obliged to inform the worker of the change from lay-off with suspension of the employment contract to partial lay-off as well as for the end of the situation. Is this notice of change or termination given verbally or in writing?
Yes, the Employer is legally obliged to a duty of prior communication to each of the workers covered by the Simplified Lay-Off regime, with information on the concrete measure to be adopted - suspension or reduction of the normal working period -, start date and the predictable duration. These communications must be made in writing (letter or email) and can be extended throughout the evolution of the measure, in the event of change, extension or even early termination of the term. However, the Simplified Lay-Off legal regime does not stipulate any period in advance with which the communication must be made, resulting only from the law that it is a receipt declaration, which means that it can only take effect from the moment when comes to the knowledge of the worker.

(Respond to lawyer Catarina d 'Orey from C'O Advocacia e Serviços Jurídicos)

I work in a large tourism-related company and I'm in Lay-off with a 33% reduction in hours. 
- can I work less than 33% without prejudice to my salary? The boss has been working my schedule and I have been working less hours than I was supposed to with a 33% reduction.
- I have colleagues with the same reduction in hours but obliged to work overtime, is it legal? Can these hours be managed throughout the month? That is, one week I work more hours and do I pay the next week with less hours?
- I have an approved vacation, but now the company wants to postpone the vacation even though it is in Lay of with reduced hours, is it legal?
It is covered by the “simplified” lay-off regime in the form of reduction of the Normal Working Period. In your case by 33%. In a situation of temporary reduction of the normal working period, your Employer will have to inform you in writing of the situation and terms in which you placed it under the “simplified” lay-off. In the event of a reduction in working hours, the extent of this reduction may vary, depending on your company's management and planning needs. The extent of the reduction can be defined, in a variable way, according to certain sections and areas of activity. This reduction can also be made not according to daily or weekly periods, but according to monthly periods. For example, an employer may require a worker to be reduced to go to work in the last week of the month, or the last 4 days of the month because he is affected by certain commercial standards of productivity. There is nothing to prevent the reduction from being measured over the month. This is generic information, to be adapted to your specific case and that of your co-workers.
It is essential that the Employer and the Employee flawlessly comply with the schedule reduction method agreed between the parties. Non-compliance - if the worker pays his / her work activity to the Employer beyond the time agreed in the modality of temporary reduction of the normal working period, for example - it will result in particular, the immediate cessation of support and the refund or payment , depending on the case, to ISS, IP and IEFP, total or proportional IP of amounts already received or exempted. There will also be counterordinational responsibility on the part of the Employer.
You have not provided us with the amount of your gross monthly fee. However, in general terms, your Employer must pay the entire proportion of the gross salary corresponding to the hours you work (if it goes from 40 hours to 20 hours, you will pay half) and will also settle the 30% of the remaining amount, to ensure minimum values ​​(635,00 Euros or 2/3 of your normal gross remuneration), with the remaining 70% of that remaining amount being paid by Social Security.
Lastly, in relation to vacations, it is important to clarify that if they were already previously scheduled by agreement with the Employer, the reduction time in a “simplified” lay-off regime does not affect the scheduling and enjoyment of them. In this sense, the worker maintains the right to take holidays that were previously scheduled by agreement with the employer.

(Respond to lawyer Catarina d 'Orey from C'O Advocacia e Serviços Jurídicos)

I worked all May, I started on May 4 (since May 1 was a holiday and on May 2 and 3 a corresponding Saturday and Sunday) I was amazed when I received the pay slip and I noticed that I was discounted 3 days for lay-off as if Saturday and Sunday counted 3/4 of May. My amazement is that I called ACT and they told me that everything was fine, now I ask if I don't work on Saturday or Sunday, how will I discount days when I don't work, I would like to be cleared of this doubt, since in Portugal we receive working days I was very confused that ACT said everything was normal after I asked them this question?
Please note that in order to be able to give a concrete answer to your question, we would need some additional information regarding the modality of the “simplified” lay-off regime that was applied to you. However, we will assume that in the month of May he was covered by the “simplified” lay-off regime in the modality of reducing the Normal Working Period, since in that month he rendered his effective work activity to the Employer. In general terms, it should be clarified that the reduction decided by the Employer can respect one or more daily or weekly work periods - that is, consist of the elimination of one or more work days each week or one or more weeks of work in given month. Alternatively, the reduction may translate into a reduction in the daily or weekly work periods due - namely, from 8h / day and 40h / week, to 4h / day and 20 / week -, with workers attending the service daily. However, we are unaware of your particular situation. However, he was obliged to provide the number of weekly and daily hours determined by his Employing Entity, according to what was communicated by this entity.
In the event of a reduction, the employee has the right to be paid by the Employer for the hours worked, and may also be entitled to compensation, if the value is less than 2/3 of his normal remuneration or the minimum wage, (depending on whichever is higher), and in order to guarantee the minimum value of 635,00 euros.
In the specific case, we do not know the reason why the Employer “deducted 3 days” from his payroll. We may be facing unjustified absences with loss of remuneration, if the worker has not punctually complied with the “simplified” lay-off measure communicated to him by the Employer, which, if it is true, implies loss of remuneration. However, if there is no legal reason for the Employer to have failed to comply with the legal duty to pay the employee on time for the hours worked, the support granted under the “simplified” lay-off regime will immediately cease.

(Respond to lawyer Catarina d 'Orey from C'O Advocacia e Serviços Jurídicos)

 

I would like to know, if the salary that I will receive at the end of the month, is the same being in a lay-off situation, and in 50% lay-off? If I am on lay off at 50%, can the employer ask me to go to work longer than 50%? And if so, will I receive the same, or will I receive more?

Without knowing the amount of the salary, a concrete answer cannot be given. However, in principle, the salary to be received will not be the same. However, given the hours worked, the amount of your salary, the one you will receive may be the same, since the national minimum wage is guaranteed. The employer may ask you to work more days. When you work more days, you will get more.

(Responded Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I have the following three doubts about the layoff regime to which I am submitted: 1- Are the months in which I will be in total layoff considered as worked months and therefore counted for the calculation of annual vacation days? 2 - Same question but in the case of partial layoff? 3 - In a partial layoff, can I apply for the support allowance for assistance to children under 12 due to school closure?
Vacation days will not be reduced because of the lay-off. As for the assistance allowance for children under 12, it can only be applied for in the event of school closings and not during school holidays. However, in the event of a partial lay-off, the legislation is not clear and you may apply for this subsidy. You can only receive a small part, since it is in partial lay-off.

(Responded Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I was put on lay-off with suspension of the contract in March. However, in May, I received a guilty plea whose penalty is dismissal and suspension of the employment contract during the period of disciplinary proceedings. When I received the May salary, the amount corresponds to the month's complete lay-off. Shouldn't the proportional of the lay-off and the remainder be paid in proportion to the normal remuneration from the day the receipt of the fault is received?

During the suspension of the employment contract, in the context of disciplinary proceedings, the worker is entitled to the same remuneration as he would have had the contract not been suspended.

(Responded Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

 

I have a family member who, during the month of May, was in a “layoff of reduced hours”, having worked 80 hours in the month. In the end he received the corresponding to 2/3 of the salary deducted from social security and the meal allowance corresponding to the days he worked. My question is: shouldn't you have received 100% on the days you worked? If so, what is the justice for those who are at home "rested", after all they receive the same (without the meal allowance) and without worrying about schedules, complying with professional tasks and everything ... 

Upon suspension of the contract, the employee earns 2/3 of the gross salary (up to a maximum of 3 RMMG: 1.905,00 € gross). Of this amount, Social Security pays 70% and the company pays the remaining 30%, meaning that no one can earn less than RMMG (635,00 euros).

In the case of the reduction of the normal working period, which is the case under analysis, the company will pay in full the hours actually worked, with a retributive compensation subsequently replacing the part of the workday that was suppressed, that is, the hours not worked. . This remuneration has the necessary amount to guarantee that the total remuneration delivered to the worker is always equal to 2/3 of the normal gross remuneration. Regarding the compensation, it is divided in the same way, with 70% paid by Security and the remainder by the company.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

I have a client in the restaurant area who has a layoff worker due to reduced working time, but the amount due for working time is higher than 2/3 so there is no social security compartment. Does this situation mean that you are also no longer entitled to the TSU exemption?

The answer to the question posed is negative, as, with regard to the TSU exemption under the simplified layoff, the employer is entitled to the temporary exemption from payment to Social Security of the contributions under their responsibility, referring to the total remuneration paid to workers covered by that extraordinary support measure.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

How is the break calculated for MOE (Members of statutory bodies) / managers with employees but who are receiving wages by the company in question? 

In order to be entitled to extraordinary support for the reduction of economic activity, the company, foundation, association or cooperative must be in a situation of abrupt and sharp breakdown of at least 40% of the billing in the period of thirty days prior to the request with the competent social security services, with reference to the monthly average of the two months prior to that period, or compared to the same period of the previous year, or, for those who started the activity less than 12 months ago, to the average of that period.

The situation of an abrupt and accentuated breach of at least 40% of the invoicing is attested by a declaration by the owner, under honor, and in the case of entities with organized accounting certified by the certified accountant.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

When the trial period is not over and the person enters Lay-off do the days continue to count or during this regime is not counted for the trial period?

The trial period is intended to assess the parties' capacity reciprocally. If the lay-off has occurred with reduced working hours, the trial period is considered to have elapsed. If there has been a total suspension of the provision of work, the trial period is not considered to have elapsed because there was no fulfillment of duties.

(Response from Rita Garcia Pereira, lawyer and master in labor law)

I'm going to telecommute, not because I want to, but because of the situation at Covid 19. Can my company stop paying me the transportation allowance? I understand that not because it is not my choice. I understand that the transport subsidy is as much a part of my salary as the food subsidy and this the company will continue to pay soon, can they remove the transport subsidy from me?

If the transport allowance is real (and not overpaid), it can be withdrawn, since it is an allowance to cover expenses and is only paid and processed when there is actual transport, as with the allowance. of food that is not paid, as a rule, in the holiday month.

(Response from Rita Garcia Pereira, lawyer and master in labor law)

 

I've been on lay off since April. The simplified lay-off ended at the end of the month (July). My employer so far has said nothing to me. What to do if they still say nothing? I have already sent an email to find out what my situation is in the month of August and so far no one has responded. I would like to know what to do.

You must be present at the workplace, under penalty of being subject to unjustified absences. In any case, you must be accompanied by two witnesses, who may be friends or family. If the site is closed, you should, in addition to the witnesses, contact ACT.

(Response from Rita Garcia Pereira, lawyer and master in labor law)

 

I am in a 32-hour partial lay-off at Ibersol. I find myself fulfilling the second contract and I have two doubts:

a) I am part of the management team that has 5 effective elements and we were called 3, the other two being effective and I am not. The other 3 are in total lay off. Should I have been called? Didn't staff have to be given priority?

The Worker is in a simplified lay-off regime, with a temporary reduction of the normal working period, under DL No. 10-G / 2020 of 26/03, amended by Statement of Rectification No. 14/2020 of 28/03, DL nº 14-F / 2020 of 13/04 and DL nº 27-B / 2020, of 19/06.

The special legislation COVID 19 does not affect the regime enshrined in the Labor Code (CT), approved by Law No. 7/2009 of 12 February in its current wording, relating to the temporary reduction of the normal working period or suspension of the employment contract. work by fact regarding the employer (lay-off), so the selection of workers to cover depends on objective criteria which, although they are at the employer's discretion, must, however, fit the concept of a business crisis situation and cover workers directly related to the company or establishment closed totally or partially (article 3, no. 1, al. a) DL no. 10-G / 2020 of 26/03, amended by the Statement of Rectification no. 14/2020 of 28/03, DL nº 14-F / 2020 of 13/04 and DL nº 27-B / 2020, of 19/06).

Therefore, except in the best opinion, the call of the worker will be in accordance with the law if they are verified, as they appear to be the assumptions of the employer's discretionary choice.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)


b) And the second and most important question is: I have a lawsuit that withholds my salary ... everything I receive above the minimum wage is withheld. If I am in partial lay-off and if I go on vacation, do I receive the full amount of the allowance? Or is it taken from me anyway?

The working time reduction regime does not affect the worker's salary and vacation duration (article 306, no. 1 Labor Code).

In the present case, it is assumed that the worker has his salary partially pledged (Article 738 of the Civil Procedure Code), receiving only the amount equivalent to a national minimum wage set at this year, at € 635,00 (Decree-Law No. 167/2019 of 21 November), the amount legally safeguarded in order to ensure the subsistence of the executed.

If the process and the amounts of the attachment in question are not known, except in the best opinion, it will always be said that the holiday allowance will be seized in full, as it does not fall under the partially pledged assets of article 738 of the CPC.

That is, as long as the annual income of the worker / executed, spread over the 12 months of the year, is not less than the value of the national minimum wage, there is nothing to prevent the attachment of the vacation allowance to the extent that it exceeds that amount.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

a) I would like you to elucidate me about the following: in layoff the contributory value of remuneration considered in social security, is it base value in normal work situation 650 € in my case, or the value calculated by the layoff of 635 euros?

The extraordinary support for maintaining the employment contract in a company in a situation of business crisis (simplified lay-off), takes the form of financial support, per employee, attributed to the company, under the terms of paragraph 4, of article 305. Of the Labor Code (article 5 DL no. 10-G / 2020 of 26/03, amended by Statement of Rectification no. 14/2020 of 28/03, DL no. 14-F / 2020 of 13/04 and DL nº 27-B / 2020, of 19/06).

Thus, the worker has the right to receive a monthly minimum amount equal to 2/3 of his normal gross remuneration, or the value of the minimum guaranteed monthly remuneration corresponding to his normal period of work, whichever is higher.

Now, in this case, the worker does not indicate the lay-off regime (suspension of the employment contract or temporary reduction of the normal working period), nor the number of hours that she normally works.

Thus, assuming that the worker works 40 hours a week, in a situation of suspension of employment contract, assuming that the (gross) salary of the worker is € 650,00: the right to be paid 2/3 would be only the amount of € 433,33 (€ 650,00 / 3) x 2 = € 433,33), so, except for a better opinion, the value of the minimum monthly fee is € 635,00, ie higher than the 2/3 above mentioned, the contribution amount considered in Social Security will be € 635,00.

In turn, in the event of a temporary reduction in the normal working period, the remuneration is calculated according to the hours worked. For example, assuming a normal working period of 40 hours per week (5 days), if for example the reduction in hours is 24 hours per week (3 days) under the lay-off regime, the work will be 13 days a month.

Thus, if the worker receives € 650,00 (gross), 2/3 of the salary corresponds, as mentioned above, to € 433,33.

Calculating the hourly rate (€ 650,00 x12): (52 × 40) = € 7800,00: € 2080,00 = € 3,75 and then the daily value: 8h x € 3,75 = 30,00, € XNUMX.

If the worker works 13 days, the monthly salary is 13 days x € 30,00 = € 390,00, amount of remuneration.

In a lay-off regime, the worker is entitled to a guaranteed minimum monthly remuneration of € 635,00.

Now, if the remuneration for the 13 days of work corresponds to the value of € 390,00: less than the minimum guaranteed remuneration, the value of the remuneration compensation will be: € 635,00 - € 390,00 = € 245,00, paid by employer, who, meanwhile, will receive 70% of the compensation amount, as extraordinary financial support from the Social Security Institute.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

b) Another issue: I started working for a fixed-term contract in February and in March from the 20th to the 30th, the company closed its doors due to the pandemic and went into layoff in April, and deducted me eight working days as a vacation at the end of March, is it cool?

With regard to holiday scheduling, the law is very clear: the holiday period is marked by agreement between employer and worker (article 241. Labor Code).

If there is no agreement, the employer can only schedule vacations between the 1st of May and the 31st of October, except for the existence of an instrument of collective labor regulation or the opinion of the workers' representatives to admit a different time.

The elements provided do not allow us to know the duration of the fixed-term employment contract, so it was important to know if it was less than or greater than 6 months, as the regimes are different:

For employment contracts of less than 6 months, the worker is entitled to 2 working days of vacation for each full month of the duration of the contract; taken immediately before termination, unless agreed between the parties (article 239, paragraphs 4 and 5 CT);
In the year of admission, the employee is entitled to two working days of vacation for each month of the contract's duration, up to 20 days, the enjoyment of which may take place after 6 full months of contract execution.
In this sense, except in the best opinion, the employer is not allowed to impose (forced) vacations at a time when the company closed the company due to the pandemic, since, under labor law, vacations must be exercised in order to provide physical and psychological recovery, conditions of personal availability, integration into family life and social and cultural participation were given to the worker, which did not happen, since the worker's vacation was imposed, without respecting the legal limits and in view of the employer's interest. In addition, as part of general duties, the parties must act in good faith in the exercise of their rights, as well as in the fulfillment of their obligations (Article 126 CT), a legal framework that does not seem to have been fulfilled.

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

I would like to clarify an issue related to the payment in Lay-off, namely the remuneration of the sellers. I have been working for more than 20 years in the same company and my salary consists of a basic salary plus monthly commissions (according to the employment contract). During the 20 years of activity every month, I have commissions on my payroll making the respective discounts for social security and DGCI.
During the Lay-off period, my company communicated to my social security my remuneration (base salary plus average commissions in the last 12 months), having the following Monday. accepted the same and made the payment to my company on that communicated amount.
Having seen some news that say that commissions are not part of the salary for calculating Lay-off, I noticed that in fact the social segment considered them and paid on that amount, which seems more than fair!

Is this payment correct or can social security ask for a refund?

Even today, the subject of commissions is a matter that is very much discussed in court, as its understanding is not completely peaceful, especially when it comes to knowing whether or not they comprise part of the remuneration for the purposes of calculating holidays and subsidies. from Christmas.

Remuneration is defined as the benefit to which, under the contract, the rules governing it or the uses, the worker is entitled in return for his work (Article 258 of the Labor Code); the remuneration can be certain, variable or mixed (article 261. Labor Code).

In turn, the understanding of Jurisprudence is consensual and peaceful, in the sense that the periodicity and regularity of the service expresses, in the end, an idea of ​​normality, so a service that is characterized by irregularity and intermittency will not be considered as retribution.

Thus, under the terms of paragraph 2 of article 261 of the Labor Code, unlike sensu, variable remuneration is one that is not calculated according to working time, but rather based on other factors, such as, in the case of commissions, the number of sales made by the worker.

This means that this type of remuneration aims to individualize the consideration attributed to the worker, adjusting it to the results achieved by his work.

However, if the parties do not specify the respective criterion in the individual employment contract to determine the value of the variable remuneration, the law considers the average of the amounts corresponding to the last 12 months (article 260, paragraph 3, Labor Code).

According to the elements reported, if the parties have agreed on a contractual criterion, the calculation of the remuneration must be in accordance with the same; the average of the amounts corresponding to the last 12 months should only be applied supplementarily, if the individual employment contract does not mention anything.

However, it does not give us any doubt as to the fact that the commissions per se are part of the monthly fee, in the specific case: in addition to not being included in the exemplary catalog of article 260. Labor Code, they have always been paid periodically and regular to the worker.

However, as far as the simplified lay-off is concerned, if companies find their activity seriously affected due to Pandemia COVID 19, workers are guaranteed, both in suspension of the employment contract and in the reduction of working hours, the payment of the minimum amount equal to 2/3 of your gross normal remuneration, or the amount of the minimum guaranteed monthly remuneration (635 euros for the year 2020), corresponding to the normal period of work.

In case it is necessary to guarantee the referred 2/3 of your normal gross remuneration, or the said guaranteed minimum monthly remuneration, whichever is the most favorable to the worker, together with a compensation that cannot exceed the limit of three times the national minimum wage , that is, € 1.905,00 monthly (article 305, paragraph 3 of the Labor Code, ex vi no. 4, article 6 of Decree-Law no. 10-G / 2020 of 26 March).

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

My employer entered Layoff under a contract suspension regime from 01/04 to 26/05, and on 27/05 I returned to work under partial Layoff 80%. At that time, I was asked to take the 01 days of vacation suspended in May on the 06st of June, according to Layoff's criteria and state of emergency.

In the meantime, the company goes back and enters Layoff's regime again due to the suspension of contracts, taking into account the postponement of the opening decreed by the government for the shopping centers in Lisbon. 

What situation am I in? I’ve been informed that I’m on vacation, but I’ve received Layoff’s statement. How will my remuneration be? Is it legal since these holidays were imposed on me and the store remains closed? My colleagues who stayed on vacation and did not book them now will have them with the store open, that is, I am spending holidays but the store has not opened, it is unfair. Will I be paid based on Layoff anyway? 

Firstly, it should be borne in mind that during the duration of the extraordinary measures under Decree-Law no. 10-G / 2020, of 26 March (simplified lay-off) in case of suspension of employment contracts, the rights, duties and guarantees of the parties that do not presuppose the effective provision of work are maintained, under the terms provided for in the Labor Code, ex vi article 6, paragraph 3.

Except for a better opinion, if the employee's vacation was already scheduled by agreement for the month of May, and the company, meanwhile, entered into a simplified lay-off regime (suspension), this fact was not a reason for the suspension of the vacation.

In addition, it must be taken into account that under the terms of the law the vacation period is marked by agreement between the parties and, in the absence of it, the employer can only schedule the vacation period between the 1st of May and the day October 31, except for the existence of an instrument of collective labor regulation or the opinion of workers' representatives to admit a different time.

In the present case, we are not aware of whether there was an agreement between the worker and the employer, taking into account the incongruity in the factual description: (i) on the one hand, the worker says that “I was asked”, on the other, “since they were imposed on me ”.

Regardless of this doubt, it is important to clarify that the reduction or suspension time (simplified lay-off regime) does not affect the expiration and duration of the vacation, nor does it affect the booking and enjoyment of the vacation. In this sense, the worker has the right to vacation pay due under normal working conditions - without any reduction - paid by the employer (article 306 of the Labor Code).

The pay of the worker is different, under a simplified Lay-off regime: the employer to apply for exceptional and temporary measures must face a business crisis, under the terms of article 3, paragraph 1, of the Decree -Law no. 10-G / 2020, of 26 March, imposing the law, the duty to communicate in writing the respective decision and indicate the foreseeable duration to the worker.

Thus, the worker is entitled to a remuneration calculated in proportion to the hours worked under the lay-off regime (reduction of working hours by 80%, or 20%, as it is not clear what the reduction was actually), guaranteed however, the law, the receipt of the minimum amount equal to 2/3 of your gross normal remuneration, or the amount of the minimum guaranteed remuneration (in the amount of € 635,00 in 2020), corresponding to your normal working period, depending on the which is higher - both in the reduction phase and in the suspension phase - through the right to retributive compensation, to the extent necessary to jointly, with the remuneration ensure the above-mentioned amount up to the maximum limit of 635,00, € 1905,00, that is, € XNUMX.

My father is a heavy goods driver and agreed with the company where he works, the reduction of the weekly schedule from 40h to 18h, in the period from 04/05/2020 to 02/06/2020, having also been delivered a schedule of services , with an indication of the days when he would have to go to work and the days when he would stay at home, however, he went to work more days than agreed, having worked a total of 123 hours in 14 working days, having thus exceeded 51 hours average weekly working hours agreed (18h). In this sense, I was aware that when working more hours than initially agreed, I would receive the remuneration corresponding to the work done more, which did not happen, because when receiving the salary receipt, he verified that he received only 2/3 of the salary, having a 1/3 discount has been made in the 2 weeks in which you have worked a full weekly schedule (having even exceeded that schedule by about 10am in each of those weeks).
In view of the above, I request clarification regarding the payment of monthly remuneration, in a layoff situation with a reduction in weekly working hours (from 40h to 18h), when that agreed time is exceeded.

Extraordinary and temporary support measures for workers and employers affected by the COVID-19 pandemic aim to support the maintenance of jobs and mitigate the situations of business crisis, are regulated by Decree-Law no. 10-G / 2020 of March 26.

As such, it is important to remember that the entities and workers covered are subject to rights and duties.

The worker in question is covered by the simplified lay-off regime. In this context, it was agreed between the parties to reduce hours from 40 hours to 18 hours a week.

It so happens that the worker in 14 days worked a total of 123 hours, not complying with the agreed number of hours, which implied an extraordinary support - financed by the State Budget - with a view to safeguarding the job, as well as maintaining the company's activity in the context of a global pandemic crisis.

The employee who provides work to the employer over the established hours, in the modality of temporary reduction of the normal period of work, incurs non-compliance.

Thus, as an employer incurs non-compliance that does not fulfill its legal obligations in this context.

The consequence of the referred non-compliance - by the employer, or the worker - implies the immediate cessation of support and the refund or payment, as the case may be, to ISS, IP, and to IEFP, IP, total or proportional, of the amounts already received or exempted, and can be carried out through forced collection, if they are not voluntarily refunded.

Infringement of the rules of the lay-off regime (reduction or suspension) implies employer's administrative liability, subject to the respective regime provided for in the Labor Code (articles 548 and following), even if practiced by your employee in the exercise of the respective functions , without prejudice to the responsibility committed by law to other subjects (article 551 of the Labor Code).

(Lawyer Manuela Silva Marques and lawyer Maria Carlos Brito respond)

 

 

 

My father was informed that during the month of May, whenever he was asked to stay at home it meant that that day counted as a lay-off. However, the days when I went to work, counted as 100% work.
Of the 20 working days in May, my father worked 12 and stayed at home 8.
When he received his salary, he realized that he had been paid as if he had been home the 20 days of the month, that is, those 12 days he went to work also counted as a lay-off.
That's how it works?
As he was told that working days counted 100%, we were counting on him receiving these days as a normal working day. 

The “lay-off” modality must always be communicated in writing to workers, especially as it has an impact on the employment relationship and the provision of work.
The communication addressed to the worker must have the duration and the modality (or reduction of the normal working period or suspension of the contract); If there is any change (or modality or the extension of the measure), the criteria defined by law must be observed and the worker must always be informed in writing.

In the present case, it may be possible (which does not seem plausible, however) to a regime of reduction of the normal period; however, and lacking some relevant details that may alter the appropriate response, it can be understood that if the employer is the beneficiary of the financial support provided for in Decree-Law no. 10-G / 2020, of 26 March, and is receiving financial support, cannot allow the provision of work to the employer itself by a worker covered by the extraordinary support measure for the maintenance of the employment contract in the modality of suspension of the contract, or beyond the established schedule, in the modality of temporary reduction of the normal period of work.

Apparently - even due to the fact that he paid the remuneration under the terms of the lay-off throughout the month of May, as mentioned, the employer is in a practice that is not legally allowed.

One would have to know the details of the communication to better respond.

(Reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados) 

 

If a company is in a total lay-off and moves to a partial lay-off, how does the company communicate to employees? It is possible to be in partial lay off and switch back to full lay off

All changes to the lay-off modality must always be communicated in writing to workers, especially as they have an impact on the employment relationship and the provision of work. These changes are relevant, for example, for the purposes of remuneration and hours, just to mention a few.
The communication addressed to the worker must have the duration and the modality (or reduction of the normal working period or suspension of the contract); If there is any change (or modality or the extension of the measure), the criteria defined by law must be observed and the worker must always be informed in writing.
Changes in the lay-off modality, under the terms of the legislation in force, depend on the observance and fulfillment of the criteria defined by law.

(Reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados)

Does Layoff end when the employer so determines? As a result, do I have to go back to work as soon as the employer decides?
My company put me in Layoff in April, and it looks like it will extend Layoff by at least another month. If they renew Layoff and decide in mid-July that I can go back to work, I have to report to work, or because they renew Layoff for a month, I have the right to stay that month in Layoff and only go back to work at next month?

Can I take a vacation once Layoff is over?

The employer must communicate, in a clear and written form, to the worker all the vicissitudes inherent to the type of “lay-off” that is applicable to him.
The communication addressed to the worker must have the duration and the modality (or reduction of the normal working period or suspension of the contract); so if there is a change (or modality or the extension of the measure) the criteria defined in the law must be observed and the worker must always be informed in writing.
If nothing is communicated to the contrary, the worker must report to work (in accordance with the schedule duly communicated or in force) the day after the one indicated as having “finished the“ lay-off ””.
Regarding holidays:
Contrary to what would be seen in other situations of suspension of the employment contract, the reduction or suspension time in a lay-off situation does not affect neither the expiration nor the duration of the vacation period (pursuant to paragraph 1 of art. 306 of the Labor Code), nor does it prejudice the booking or enjoyment of holidays (paragraph 2 of article 306 of the Labor Code).
The employee also retains the right to payment, by the employer, of the holiday allowance.
In terms of scheduling the holiday period, inside or outside the lay-off situation, it is necessary to take into account the general rules of the Labor Code, (more specifically, paragraph 1 of article 241 of the Labor Code) Work), where the vacation period is foreseen by agreement between employer and worker. Therefore, in this case, it is relevant to know whether these vacations were previously scheduled or if it is the employee's intention to propose these dates after the “lay-off period”.
Thus, and if there is a lack of agreement, in or out of the “lay-off” situation, it is up to the employer to schedule the vacation, in general terms, and the vacation cannot start on the employee's weekly rest day, listening to the effect is the workers' commission or, failing that, the inter-union commission or the union commission representing the worker concerned (as provided for in paragraph 2 of article 241 of the Labor Code).
If there is no possibility of agreement between the parties, the law admits the possibility of the employer to unilaterally schedule the worker's vacation, even during a limited period provided for in the law: between May 1 and October 31. The imposition of enjoyment in a period other than that described depends on the agreement of the workers being reached.
The answer to the question thus depends on the combination of all these elements or legal provisions.

* (Note: Both the size of the company and the fact that it is covered by a collective regulation instrument may, in certain cases, determine in another sense another regime and / or dates regarding holidays)

(Reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados) 

 

I would like it if you could help me. I have been working in Private Security since 19/01/2012 for about 5 years, on the 23/07 hour shift. In 05/2016 I got another job from 14/22 hours with the knowledge of this company that I had another job at the time indicated above. Now this company on 24/03/2020 went into a simplified layoff and since that time they have not paid me anything, they tell me that because I have another job I am not entitled to the support scheme, however I have already informed myself and what they tell me is that it wouldn't have if the Private Security job had come up after the other company went into layoff. I continue to work normally at 1 job.

Regarding Private Security: Private Security is regulated by Law No. 34/2013, of 16 May, amended and republished by Law No. 46/2019 of 8 July, being a complementary and subsidiary activity of the activity performed by security forces and services of the State and assuming particular importance in the protection of people and goods, and in the prevention and deterrence of the practice of illegal acts. Thus, the private security profession is regulated, subject to obtaining a professional title and meeting certain requirements, comprising various specialties. In addition, the private security profession implies the signing of an employment contract (in writing) with an entity holding a license or license, and the law also provides for limits on the signing of very short-term employment contracts. However, if it is certain that private security companies carry out this activity on an exclusive basis, which cannot be combined with any others, regardless of the legal regime applicable to them, it is also certain that such exclusivity does not apply to surveillance personnel , which, as the description seems to be the case here, may have other employment links.

As for the layoff: During the duration of the support measures provided for in the law, in the event of a reduction in the normal working period, the rights, duties and guarantees of the parties are maintained (in case of suspension of the employment contract, those and those who do not assume the actual performance of work). The worker therefore retains the right to remuneration (calculated in proportion to the hours worked) and has the right to compensatory compensation to the extent necessary to, in conjunction with the remuneration for work performed in or outside the company, ensure the monthly amount minimum you must earn monthly (equal to two thirds of your normal gross remuneration, or the minimum guaranteed monthly remuneration corresponding to your normal working period, whichever is the higher). During such period, the worker has / maintains, therefore, the right to exercise another remunerated activity outside the company, of which, however, he must inform the employer, within five days from the beginning of the same (in the specific case, the knowledge is valid), for the purpose of any reduction in the retributive compensation, under penalty of loss of the right to retributive compensation and, as well as, duty to refund the amounts received under this title, the omission constituting a disciplinary infraction. In conclusion, the employer cannot do what he is said to be doing, as he must not only pay the remuneration compensation to which the worker is entitled on time, but must maintain the timely payment of the remuneration. In case of non-punctual payment, the worker has the right to suspend the employment contract, and this may imply for the employer the immediate cessation of the support granted and the refund or payment, as the case may be, total or proportional, of the amounts already received or exempted.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados)

 

I have already read several opinions on the issue of pay that is due in Lay-off cases due to the suspension of the employment contract of a part-time employee ... However, I am still confused and from what I understand there are lawyers with different opinions!
In my case I work 24 hours a week and receive 600 €. How is my retribution in total Lay Off? Doing the simulation on the SS website gives the value of the base fee subject to the SS discount, ie 600 × 0,89 = € 534, which is what I normally receive. This was the amount I received in April.
In May this was no longer the case, as the 2/3 of the salary rule was applied, and I received only 400 × 0,89 = € 356. I don't really understand which month is right, because if I was 2 months in total Lay Off the rule should be the same for 2 months! I have already asked the SS for clarification, but I have not yet received an answer. I also spoke to my employer, who has not yet clarified.
In June I stayed until the 26th with Family Support due to the closing of schools, as my 7 year old daughter is taking classes at home. What will my retribution be? The 2/3 rule also applies or since the monthly amount that I receive is lower than the national minimum, do I keep my normal € 600 base fee?

I realize your doubt and your confusion - not least because your employer performed two different salary processes.
The Social Security information is as follows: during the period in which the employee is covered by the layoff, he / she is entitled to receive a monthly remuneration compensation equal to two thirds of his normal gross salary from the company; but: with a guarantee of a minimum value equal to the guaranteed minimum monthly remuneration or the value of your remuneration (that is, the total monthly salary) when this is lower than the national minimum salary (as is, precisely, the case of workers who part-time).
In other words, according to this information, it seems clear that the month that was correctly processed was April and that Ana Rita will be entitled, during the time she is in layoff, to receive her gross monthly salary of € 600,00, XNUMX, to which the legally due discounts will be deducted.
I suggest that you call your company to attention to this fact, in the sense that it corrects the salary that was paid to you in May.

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

I would like to know if after my entry into the company again after being at home in Lay-off for 3 months I will be able to say goodbye to my company without any obstacle giving the 15 days notice that are normal by law. My area is hospitality.

The layoff - both in the simplified and in the “traditional” regime (that is, the one already existing in the Labor Code) - does not affect the seniority of the worker in the company, nor does it prevent him from ending the employment contract. This means that you can, in fact, terminate your contract, and the time you were in layoff (either by reducing your hours or by suspending your employment contract) continued to count for the purposes of seniority in company. As for the notice that has to be given, and unless something different is contemplated in the individual employment contract or in applicable collective agreement, I remind you that it will only be 15 days if you have been in the company with a fixed-term contract for less than six months; if it is 6 months or more, there are already 30 days of notice. If you have an open-ended contract, you must present the complaint at least 30 or 60 days in advance, depending on whether you have, respectively, up to two years or more than two years of seniority.

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

 

I've been on lay off since April 2nd, the regime I was on was 20 hours a month, that is, 1 hour a day. On the 22nd of June, I physically returned to the company in lay off on a 35 hour weekly basis, that is, 7 hours a day. My gross salary is 926 € / month and my normal working hours were 40 hours a week. I would like to understand the amount I will receive for the month of June.

Helena, for the month of June, will be entitled to the value of the national minimum wage, that is, € 635,00.
This is because the final amount he would receive in June would be € 331,82 and the law does not allow the worker - who, like Helena, was working full time - to receive less than the national minimum wage (or two thirds of the “normal” salary of the employee, whichever is higher, in which case, the minimum wage is higher than these 2/3).
If it were not for this standard, it would be faced with the following scenario:
- From 1 to 21 June, working 5 hours a week, you would be entitled to € 81,03 (since 5 hours a week would correspond to € 115,75 per month, so 21 days would correspond to € 81,03);
- From the 22nd to the 30th of July, working 35h a week, he would be entitled to € 216,07 (since 35h a week would correspond to € 810,25 per month, so 8 days would be equivalent to € 216,07).
All in all, Helena would receive the referred € 331,82. As this is not legally permitted, you will receive € 635,00, as provided by law.
Also, inquire with your employer or Social Security, about the Economic and Social Stabilization Supplement, which will be between € 100,00 and € 351,00, and is attributed to those who:
i. There was a reduction in wage income because he was covered by the layoff regime;
ii. For at least one full calendar month between April and June;
iii. And whose base salary, in February 2020, was equal to or less than twice the national minimum wage (€ 1.270,00).
Helena seems to fit this situation, so she should be entitled to the mentioned complement

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

The employer has currently put me on partial lay-off and I am forced to work 4 hours a day. My question is whether I have to work beyond those 4 hours a day? If you work where do those hours go? Are they paid?

In general terms, the hours that the worker pays beyond the normal working period are considered “overtime” and will have to be paid as such (subject to the daily and annual limits, provided for by law and applicable collective agreement, if any an).
However, in this particular case, the provision of overtime seems to go against the layoff regime itself, in the option of reducing the normal working period, as this would imply that there was not, in fact, the reduction determined by the company and sanctioned by Social Security , which is providing that support. Thus, Diana is not obliged to perform work after 4 hours, under penalty of the company being subverting the regime in which it is covered.
That said, I believe that there will also have to be some case-by-case analysis on your part as to what is asked of you. For example, if one day there is an emergency, which implies that you spend a little more time in the workplace to resolve it, I no longer believe that it would be a subversion of the layoff regime, because it would be an isolated situation. In that case, you must request the company to pay for that extra work.

(Replies Joana Saraiva, lawyer and junior researcher at Queen Mary University of London)

 

I am going back to work after my maternity leave. I am entitled to a 2-hour reduction in breastfeeding. If the company wants me to be on a lay-off regime with an hourly reduction in half, should I work 15h a week or 20h? Do these hours have a maximum daily limit?

The exemption for breastfeeding is provided for in article 47 of the CT. Article 47 of the CT stipulates that: i) The mother who breastfeeds her child has the right to be released from work for the purpose, for the duration of breastfeeding; ii) the daily breastfeeding exemption is taken in two different periods, with a maximum duration of one hour each, unless another regime is agreed with the employer; iii) if the mother works part-time, the daily breastfeeding reduction is reduced in proportion to the respective normal working period, which may not be less than 30 minutes, iv) in the situation of part-time work, daily leave is taken in a period not exceeding one hour and, if necessary, in a second period lasting remaining, unless other arrangements are agreed with the employer.
The exemption for breastfeeding is not expressly provided for in the simplified lay-off regime (Decree-Law nº 10-G / 2020 in the current wording), however, paragraph 3 of article 6 of the referred regime stipulates that in case of temporary reduction of the normal working hours, the rights, duties and guarantees of the parties are maintained, under the terms provided for in the CT.
I understand that the breastfeeding exemption regime provided for part-time work applies to situations of temporary reduction of the normal working period, and the breastfeeding exemption should be reduced in proportion to the respective normal working period, and cannot be less than 30 minutes.
Based on the assumption that the normal daily work period is reduced by half, that is to say 4 hours a day, the mother is entitled to enjoy daily layoffs, for breastfeeding, not exceeding one hour, which means that the mother will have to work 3 hours a day and 15 hours a week.
The normal daily working period cannot exceed 8 hours (Article 203 of the CT).

(Response from Gabriela Rei, Lawyer responsible for the Labor Law area at Kennedys, Lisbon) 

I am in a lay off regime with reduced working hours and I would like to know (as an employee) what the maximum number of hours I will have to accept to work. That is, for example, in a universe of 40 hours a week, how many hours do I have to work? And now, at the monthly level, what would be the percentage under this same regime, with 100% representing a month of normal work?

The simplified lay-off regime (Decree-Law nº 10-G / 2020 in the current wording) refers the matter referring to the reduction of normal working periods to the regime provided for in articles 298 and following of the CT.

Paragraph 2 of article 298 of the CT stipulates that the reduction of normal periods of work may cover: i) one or more normal periods of work, daily or weekly, which may concern different groups of workers, in rotation; ii) decrease in the number of hours corresponding to the normal daily or weekly work period. The referred regime does not provide, neither minimum nor maximum limits, for normal periods of work. These limits are provided for in Article 203 of the CT.
Article 203 of the CT stipulates that the normal period of work may not exceed eight hours a day or forty hours a week. These are the time limits per day and per week that workers are required to work.
In situations of temporary reduction of normal working hours, the monthly number of hours worked must be less than the monthly work performed without reducing normal working hours. In this regime, workers can only work on certain days of the week, work every other week or work fewer hours per day or per week.
In a limited situation, you may be asked to work 40 hours a week.

(Response from Gabriela Rei, Lawyer responsible for the Labor Law area at Kennedys, Lisbon) 

 

My company based in Lisbon has been in a layoff regime since April 1st. I have always worked in teleworking since March 13 until now. However, I am being forced to leave telecommuting to start working on its facilities. I have a certificate from the family doctor that I have a chronic disease, so DGS recommends maintaining the telework regime. Knowing that this situation is foreseen in the law, I would like to know what to do and what I can claim to justify the continuity of my work in this regime and even when an agreement between both parties is not necessary considering that I am part of the exceptions the end of mandatory teleworking?

The teleworking regime is mandatory when required by the worker, regardless of the employment relationship and whenever the functions in question allow it, in the following situations: i) the worker, through medical certification, is covered by the exceptional protection regime for immunocompromised and sick people chronic, pursuant to article 25 A of Decree-Law No. 10-A / 2020, in its current wording; ii) the worker with a disability, with a degree of disability equal to or greater than 60% (article 4 of the Resolution of the Council of Ministers no. 51-A / 2020 of 26 June 2020).
The situation presented fulfills the legal requirements for the teleworking regime to be applied without the need for an agreement by the employer, given that the functions are being performed under the teleworking regime and the worker has a medical certificate certifying that she has a chronic disease. The worker must comply with the legal formalism and requires the employer to continue providing teleworking. If the request is refused I suggest consulting a lawyer to help you in this relationship with the company.

(Response from Gabriela Rei, Lawyer responsible for the Labor Law area at Kennedys, Lisbon)

With the changes to the simplified lay-off, new doubts arise, namely about the new rules that apply to the “normal” lay-off (which was already provided for in the law before the Pandemic). In my case, the company for which I work (Tourism sector) predicting that the recovery in our sector would not be immediate, opted for the normal Lay-off. We entered Lay-off on 16 April 2020 and in the communication sent informs that we will be in Lay-off until September 30 with the possibility of renewing for another 6 months. The new rules of the simplified lay-off are more advantageous for employees, namely remuneration.
1) Will workers also be entitled to the Bonus to be awarded by SS?
2) Will the workload reduction be the same?
3) Will the remuneration be the same as for the simplified Lay off?

1) Yes, they are entitled. The stabilization supplement applies to workers whose base pay in February 2020 was equal to or less than twice the RMMG and who, between April and June, were covered by at least one full calendar month for maintenance support of the employment contract, provided for in Decree-Law No. 10-G / 2020 of March 26, in the current wording (simplified lay-off) or for temporary reduction of the normal working period or suspension of the employment contract, pursuant to articles 298 and following of CT (lay-off of CT) (Article 3 of Decree-Law No. 27-B / 2020).

2) and 3) The measure that replaces the simplified lay-off (support for the resumption of activity), provided for in the Economic and Social Stabilization Program, only applies to companies that have benefited from the simplified lay-off regime and maintain billing equal to or greater than 40% (2.2.1 of the Resolution of the Council of Ministers no. 41/2020).
In the situation presented, the company did not require extraordinary support for the maintenance of employment contracts (simplified lay-off), but the lay-off provided for in the CT, so the said measure does not apply to your company. The reduction in the workload and the remuneration provided for as it comes to replace the simplified lay-off, therefore do not apply to the situation presented. The company you refer to continues to apply the rules provided for in articles 298 and following of the Labor Code.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law, Lisbon) 

 

I earn a salary of € 856 and a € 00 prize What is the amount to receive with mandatory discounts? I have doubts if 400,00, 879 € is a net amount or if mandatory contributions are discounted from this amount.

When in doubt, he does not clarify whether the basic salary he receives is net or illiquid, whether the premium he receives is of a regular nature and constitutes a consideration for the work performed or the specific way of carrying out the work and how it is declared to the Social Security. It also does not inform which modality of the simplified Lay-Off Regime is inserted. Now, the value of the premium you indicate will only integrate your normal gross remuneration for the purposes of calculating the remuneration compensation, under the terms of paragraph 1 of article 4 of Ordinance No. 94-A / 2020 of 16 April, if has monthly regularity and is declared in Social Security in accordance with the Instructions for Completing the Annex to Model 3056/1-DGSS. In particular, in the declaration of remuneration, code “B” corresponding to the remuneration component inherent to monthly premiums must be affixed.
When in doubt, we will assume that the basic salary indicated by 856,00 euros is illiquid, and that the premium earned by 400,00 euros is monthly and is regularly declared in Social Security under the terms identified above. His gross monthly remuneration then amounts to 1.256,00 euros. However, in the Simplified Lay-Off Scheme, the monthly gross remuneration to which you are entitled is 837,33 euros gross (2/3 of 1.256,00 euros), 586,12 euros paid by Social Security and 251,29 euros to position of your Employer. This is in case your employment contract is suspended. From the gross value of 837,41 euros, you still have to deduct 11% for Social Security, resulting in a monthly net salary of 745,30 euros, which implies a value of 510,70 euros below your gross salary under normal circumstances.

(Response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

My normal and usual fee was € 1.083,00 of net salary and € 217,00 of exemption from hours, making a total of € 1.300,00 gross monthly.
With Pandemia, my company decided to remove the Exemption from Hours, a measure that I thought was appropriate, given the situation we are experiencing. 
The following month I went into Lay-Off, working 50% of my working hours. It turns out that my employer just did the calculations at the base salary, so it doesn't seem correct because my usual remuneration before this crisis was not just my basic salary, my discounts were always made at € 1.300,00.

The allowance for exemption from working hours is a component of the remuneration to which you are entitled, as long as it is a regular and periodic benefit that is paid to the employee in return for the provision of the activity or the specific way of carrying out the work. Taking into account your information, the allowance for exemption from working hours is part of your normal and gross remuneration within the scope of the Simplified Lay-Off Regime in the form of reduction of the Normal Working Period in which it is covered. In your case by 50%. Its gross remuneration is therefore 1.300,00 euros. However, in general terms, your Employer must pay the entire proportion of the gross salary corresponding to the hours worked by you, and will also settle the 30% of the remaining amount, to ensure the amount corresponding to 2/3 of the normal gross remuneration (which amounts to 866,66 euros) with the remaining 70% of that remaining amount being paid by Social Security. I emphasize that with regard to the lunch allowance, since the situation of reduced working hours is equivalent to the legal regime provided for part-time workers, a proportionality judgment should be applied, with reference to 8 hours, as it is necessary to adapt . Making this reference to proportionality, taking into account that a worker who works 5 hours receives a full meal allowance, who works 4 will be entitled to 4/5, a situation that applies to their specific case.

(Response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

I have been in lay-off for practically 3 months and it ended on the 30th but I have been full of pain in a hand that I was operated on two years ago and I had to go to the doctor to pass exams and I was on professional leave. Is it okay to have a professional leave 4 days before finishing the lay-off?

Since the District Social Security Center must be informed by the Employer that the worker included in the lay-off has presented a “medical discharge”, that worker is no longer covered by the lay-off regime, entering the same system, , “Medical leave”, starting to receive the worker under the terms of the leave regime. In this case, the Employer will not receive the proportional share of Social Security for the past 4 days.

(Response from Fátima Valadas Godinho, from Carneiro Pacheco & Associados, Law Firm)

Is there a 10% lay-off?

The lay-off has two modalities: the “suspension” of the employment contract (where only the duties and obligations resulting from the contract that are not directly related to the performance of the activity will be maintained) and the “reduction” of the normal working period , that is, there will be a reduction in the number of daily / weekly hours worked. In this last modality, the reduction can correspond to any percentage.
In the case of, for example, a worker with a monthly salary of 800 € who has a 10% reduction in working time, he will have a remuneration of around 720 € to be paid by the employer for part-time work.
In the case of a worker with the same monthly salary who has a 90% reduction in working time, he will have a remuneration of € 80 to be paid by the employer for part-time work, plus € 555 of compensation, which ensures him the € 635 considered as the minimum receivable. Of this € 555, the amount of € 388.50 is for Social Security (which will reimburse the Employer in that amount) and € 166,50 is for the Employer.

(Response from Fátima Valadas Godinho, from Carneiro Pacheco & Associados, Law Firm)

I would like to know if a company that went into lay-off from the 18th of April to the 17th of May can, due to the breakdown of orders, go back into lay-off during the month of July?

Under the general lay-off regime of the Labor Code (art. 298º A), the employer can only resort to the application of the lay-off again after a period of time equivalent to half the period previously used, which can be reduced by agreement between the employer and workers. That is, in this case of general lay-off, I could only resort to lay-off again, after 15 days.
The DL 10G / 2020 regime (simplified lay-off) in its art. 6th no. 1 orders the provisions of articles 298 and following of the Labor Code to be applied, with the necessary adaptations. Which would refer us to the above: one can only resort to the application of the lay-off again after a period of time equivalent to half the period previously used has elapsed.
However, paragraph 3 of article 6 of DL 27 B / 2020 referring to the Simplified lay-off says that “the employer who uses extraordinary support to maintain the employment contract provided for in Decree-Law 10-G / 2020 , of March 26, in the wording provided by this decree-law, may, after that support, resort to the application of the reduction or suspension measures provided for in articles 298 and following of the Labor Code, the provisions of article 298- The Labor Code ”.
That is, at the end of the simplified lay-off period, the company has the possibility of resorting without a “waiting period” to the general lay-off regime of the Labor Code (which, however, undergoes a “more time-consuming and bureaucratic internal procedure” ”Than the simplified regime).
The Government has also adopted other measures, such as: i) “Support for progressive recovery” for companies that have already benefited and ended the simplified lay-off regime and maintain billing losses equal to or greater than 40% and where there will be a progressive convergence of remuneration of the worker for 100% of his salary. For better information, see table on page 9 of the Resolution of the Council of Ministers no. 41/2020 of 6 June; or ii) Extraordinary incentive to normalize business activity (in the amount of 1 National Minimum Wage per job that has been in a simplified lay-off or 2 National Minimum Wages paid in 2 or 3 tranches over 6 months / per worker.

(Response from Fátima Valadas Godinho, from Carneiro Pacheco & Associados, Law Firm)

 

 

I have worked in a transport company for 18 years, if the company goes into layoff, should the company give preference to the youngest or the oldest?

Labor legislation makes use of the criterion of seniority in certain employment situations, such as the extinction of the job position (in fact, in this case, it is a cumulative criterion with others). In the case of the layoff, however, it does not make any reference to it or impose it as a weighting factor. It could even be said that the imposition of seniority as a criterion in layoff cases would be incompatible with the circumstances themselves. Because a situation of business crisis is at stake and it is up to the employer to decide which cases can seriously affect the normal activity of the company, which justify the exceptional measures to be adopted. Circumstances may, therefore, lead to the inclusion of a worker with more seniority and pay in the layoff regime, instead of another with less seniority and also less pay. Another aspect to be considered is the existence of risk groups and the fact that older workers may be included there, which may also justify applying the layoff regime to be determined in concrete.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados)

I would like a clarification, having signed a document from the boss to enter layoff since 22/3/2020, the boss called to start working on 2/5/2020 had he signed a document?

The layoff must be communicated (before the start of its application) by the employer to each worker, with an express mention of the respective grounds and the respective expected duration (start and end). For this purpose, the employer must also listen to union delegates and workers' committees, when they exist, and immediately send an electronic request to the competent social security service, accompanied by a statement containing a brief description of the business crisis situation, and nominative list of the workers covered, with the respective social security number. The communication of the layoff must (by law imposition) be made in writing and the employer may, for proof of the same, request the signature / rubric of such communication by the worker, at the time of delivery. Once this duty of prior notification to the worker of the duration of the measure is fulfilled, it is no longer required to communicate again the end of the same measure, and it can be assumed that the telephone call referred to in the question as having been made by the employer serves only to remind the worker.
However, in case of anticipation of the end of the layoff, the employer must adopt the same procedure as the one described above, also here must respect the written form. As in the previous situation, for proof of delivery, the employer can ask the worker to sign / initial the document.
It should also be noted that the exceptional measures envisaged for the business crisis situation target cases that can seriously affect the normal activity of companies and require the indispensability of such measures to ensure the viability of companies and the maintenance of jobs. Therefore, whenever it is found that the assumptions that led to the layoff are not verified or have ceased, a term must be put to it.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados)
I am in layoff, but my employer asked me if I could go to work for a week, 2 days for my sector and then do other activities than mine. I would like to know if I have an obligation to go… and if it is legal or not?

The issue seems to be divided into two situations: (1) alteration of the determined layoff; and (2) carrying out activities other than those provided for in the employment contract.
As for (1), the exceptional measures envisaged for the business crisis situation target cases that can seriously affect the normal activity of companies and require the indispensability of such measures to ensure the viability of companies and the maintenance of jobs. Therefore, whenever it is found that the assumptions that led to the layoff have not been verified or have ceased, a term must be put in place (or this should be adapted to the new reality). It is stressed that the employer must notify the layoff change in writing.
As for (2), the simplified layoff regime establishes exceptional and temporary measures with a view to maintaining jobs and mitigating business crisis situations. Thus, the employer can temporarily reduce normal working hours or suspend employment contracts, but for the duration of such measures, namely in the event of a reduction in the normal working period, the rights, duties and guarantees of the parties remain, under the terms provided for in the Labor Code (in case of suspension of the employment contract, the rights, duties and guarantees of the parties that do not presuppose the actual provision of work are maintained). However, according to labor law, the employer may, when the interest of the company so requires, temporarily charge the worker to perform functions not understood in the contracted activity, provided that this does not imply substantial change in the worker's position (functional mobility). However, this cannot imply a reduction in remuneration, since the worker has the right to the most favorable working conditions that are inherent to the duties performed. In addition, if it is certain that, in general, the worker should, in principle, perform functions corresponding to the activity for which he is hired, and the employer should assign him, within the scope of that activity, the functions most appropriate to his aptitudes and professional qualification, it is also certain that the contracted activity includes functions that are related to him or functionally linked, for which the worker has adequate qualification and that do not imply professional devaluation. Therefore, it is necessary to consider what, specifically, the employment contract in question has to do with the worker's activity.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados)

I work in a restaurant and the employer put all its employees in a simplified layoff in March. On the very day of the closing of the company, we were handed a document that mentioned that, which was signed and the copy was not delivered. Workers were not advised whether or not there was an extension of the layoff; Wages receipts were not even sent; etc. The situation I put in is: At the end of May, the boss publishes and informs social media clients about the opening date of the establishment, and after a few days he changes the same date for the following week. The workers are not informed of anything. They do not give us a date to introduce ourselves, and it cannot be on the opening day that they will let us know because there are cleaning and preparations to be done. Is there not a specific period of time for us to be alerted by the employer? Can you call us the day before to perform the next day?

Aspects in which this issue unfolds:
1. Should workers be provided with a copy of the layoff document? And should this document be signed by workers?
The layoff must be communicated (before the start of its application) by the employer to each worker, with express mention of the respective grounds and the respective foreseeable duration (start and end), and the communication must (by law imposition) be made in writing . The employer may, for proof of the same, request the signature / initial of such communication by the worker, at the moment when he presents this document to the worker.
2. Lack of notice of layoff extension:
The simplified layoff regime establishes that it can last for one month, being, exceptionally, extendable monthly, up to a maximum of three months. The extensions must also be communicated in the same terms as the initial communication of the layoff.
3. Failure to deliver remuneration receipts
During the term of the layoff, the rights, duties and guarantees of the parties are maintained, and in the event of suspension of the employment contract, the rights, duties and guarantees of the parties that do not presuppose the effective provision of work are maintained.
The layoff regime does not, therefore, prejudice the obligation that falls on the employer, under the labor legislation, to, until the payment of the remuneration, deliver to the worker a document containing the employee's identification, the full name, the number of employees. registration with the social security institution and the professional category of the worker, the basic remuneration and other benefits, as well as the period to which they refer, discounts or deductions and the net amount receivable.
4. Lack of warning to workers regarding the layoff term; notice period for reopening of establishment
As mentioned in 1., above, the employer must communicate the layoff to each worker before the start of its application, expressly indicating the respective basis and the expected duration, beginning and end. The lack of indication of the foreseeable purpose for the layoff therefore constitutes a breach of the applicable legal regime. Thus, when the establishment is reopened, the requirement for the worker to be available must be carried out in accordance with good faith, namely by establishing a reasonable period for both parties.

(Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

 

I would like to know the following question: I was on lay off until May 15th and my boss asked me to return on that date. How is my payment? Being that 15 days of the month I was at home and the other days I went back to work? How much should I receive in June with my salary being 635 euros (plus bonuses of 25 euros for not missing and 25 euros for not being late at work). Another question is from my husband, he receives 1.100 euros, but the receipt comes with 970 euros, how much should he receive while being on lay-off?

With the end of the suspension of your employment contract under the simplified lay off and the consequent return to work, the payment of your salary will be resumed.
In other words, you will receive: a) for the first fifteen days of May, the remuneration compensation paid via the simplified lay off in an amount proportional to the same fifteen days; and b) for the remaining days, their normal salary, in proportion to the days worked and according to their attendance and punctuality.
The calculation of the remuneration compensation due under the simplified lay off considers the remuneration benefits normally declared for social security and usually received by the worker, relating to basic remuneration, monthly premiums and regular monthly allowances. Therefore, the bonuses to which it refers must include not only the part paid as wages, but the part paid as compensation if they are usually declared as regular monthly allowances.
Regarding your husband, the calculation of the retributive compensation through the simplified lay off is done only on the basis of declared values, that is, on the amount of € 970.

(Response from Sílvia S. Cristovão, Lawyer in the Labor Law Department of Pares | Advogados)

I am a worker in the area of ​​airport security and since I went into layoff, my income has been only on the base value. That is, my base salary is € 857 and I have received € 565. My question is whether the extra hours that I usually have on my paycheck should also be counted (although they vary from month to month), transportation allowance, food allowance and night hours. I usually have a gross income above 1100/1200 euros and the company is only considering the base salary to calculate the amount receivable.

The calculation of the remuneration compensation paid through the simplified lay off must take into account the remuneration benefits normally declared for social security and usually received by the worker, relating to basic remuneration, monthly premiums and regular monthly allowances.
In your case, the compensation paid through the simplified lay off will include the transport allowance and, if you receive it, the night work allowance. It will not include overtime work, punctual remuneration for night hours and meal allowance.

We emphasize, however, that the compensation should be € 635,00, given that this is the minimum amount to be received under the simplified lay off for those who work 40 hours a week as we admit to be the case.

(Response from Sílvia S. Cristovão, Lawyer in the Labor Law Department of Pares | Advogados)

I hereby request information about my case in this situation related to Covid-19. I work part-time (4h) and since this situation started, the company entered the layoff. The company only has 2 employees, 1 entered the temporary termination of employment contract and in my case reduced working hours. I would like to know how much I will receive from salary knowing that I normally receive half the minimum salary. I work 4 hours a day, 6 days a week and I receive € 325 (normally). In the first 15 days of April the company closed and I didn't work. I spent 1 month working 3 hours a day, 6 days a week, thus working less than 1 hour a day (reduced hours). I would also like to know whether or not I am being deceived by the employer since they are doing other tasks that are not usual, thus adding 1 hour more work every day, claiming that it was the hours I did not work during the state of emergency… And how much will I get paid? As I cannot know otherwise, I am trying to find out for you. Can you help?

Firstly, we would like to clarify that if you work 4 hours a day, 6 days a week, for a total of 24 hours a week, you are entitled to receive a minimum wage of € 381,00, an amount proportional to the time worked taking into account the national minimum wage for full time 40 hours per week.
Second, the lay off always ensures a minimum amount equal to two thirds of your normal gross remuneration, or the minimum guaranteed monthly remuneration corresponding to your normal working period, whichever is the higher.

Thus, for the first 15 days of April you will be entitled to receive € 190,50 (€ 635: 40h x 24h = € 381,00; € 381,00: 30d x 15d). For the period in which you worked 75% of your usual working time (3h / day) you will be entitled to receive 75% of the usual remuneration to which you will add the necessary difference to make up € 381,00 and which will be processed as compensation (€ 635: 40h x 24h = € 381,00).
The company may temporarily entrust you with functions not covered by your employment contract as long as they do not involve a substantial modification of the contract.
However, regardless of the aforementioned, it cannot now be required to provide extra work (that is, in addition to the normal working period) to compensate for the reduction of the normal working period during the simplified lay off. Any provision of work beyond the normal working period in force (which we presume is now 4 hours a day, 6 days a week and, therefore, the simplified lay off has ended) should be classified as overtime or provided to the under an eventual adaptability agreement or hour bank.

(Response from Maria Carolina Guerreiro, Lawyer in the Labor Law Department of Pares | Advogados)

I have a full-time contract with a company (€ 650,88 of base salary), on March 16 the company entered into a lay-off regime, on April 4 I signed a 6-month contract with a private security company a part-time (€ 608,43 basic salary). The company I work for full time resumed operations on May 25, putting employees at 50%. Will compensation be withdrawn from me? Or do I have to return some amounts of compensation for another job?

During the period in which he was on lay off, he had to communicate to his employer the start of work to the private security company, within 5 days, that is, until April 9th.
The provision of work to the private security company has effects on the remuneration compensation to which it is entitled to receive during the lay off.

We assume that your initial employer maintains the simplified lay-off in force in the modality of reduction of working time by 50%, so that with the resumption of the work provision to 50% you will be entitled to receive 50% of your usual remuneration (ie , € 325,44) which added to the remuneration of the private security company (€ 608,43) exceeds the minimum guaranteed amount during the lay off and, consequently, will no longer be entitled to the retributive compensation that would be due for the reduction of time 50% work done under the simplified lay off.

(Response from Maria Carolina Guerreiro, Lawyer in the Labor Law Department of Pares | Advogados)
If you can help me, I would appreciate it, since I can't find this information anywhere. How long should a company notify employees of the end of the lay-off? Can you give less than 24 hours notice? Can you notify by email (personal, non-professional) at 17 pm that the workers must report at work the next day at 9 am?

The Employer is legally obliged to a duty of prior communication to each of the workers covered by the Simplified Lay-Off regime, with information on the concrete measure to be adopted - suspension or reduction of the normal working period -, start date and predictable duration. These communications must be made in writing (letter or email) and can be extended throughout the evolution of the measure, in case of change, extension or even early termination of the term. However, the Simplified Lay-Off legal regime does not stipulate any period in advance with which the communication must be made, resulting only from the law that it is a receipt declaration, which means that it can only take effect from the moment when comes to the knowledge of the worker. In view of this legal omission, it remains to be seen whether in the concrete situation, in the previous communication that he made, the Employer acted in good faith, or if, on the contrary, there was an abuse of rights. Find out if in the specific case, the Employer acted in compliance with the legal duties of care in order not to harm the worker, whether the duties of loyalty and information legally enshrined in the scope of the communication were fulfilled, taking into account the elements available to him. Although the main purpose of the Company is legally protected, it is necessary to respect the fundamental rights of the worker, bearing in mind, however, the flexibility and adaptation required by both parties within the scope of this Simplified Lay Off legislative framework, full of omissions, due to urgency and exception context in which it originated.

(Response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

I have a question regarding the simplified lay-off that I would be very grateful if you could clarify. On the 8th of April most of the people in my company entered into a partial lay-off and 4 people in a total lay-off. On the 1st of June I was informed by the CEO of the company - to whom I report - that from the following day I would start the total lay-off, due to cost reduction. However, at the same time he informed me that he had hired 2 external consultants to do my job. He didn't tell me who the consultants are and he didn't ask me to speak to them. After about an hour, there was a statement for the entire company to inform that a system migration was going to be made and that it was possible that some people would experience some temporary difficulty. From that moment I was without access to my email, with the indication that the password had been changed. I know that other colleagues had the same difficulty, but the same day or the next day the situation was regularized for them, while I still do not have access to my professional email. In addition, I was also deprived of access to all company applications. I would like you to let me know if the company can do this.

Firstly, as it is covered by the Simplified Lay-Off regime in the form of suspension of the employment contract, your Company cannot hire third parties to provide its work activity, now suspended. There is no express reference to the possibility of hiring during the Lay-Off but, by reference to the common regime, companies are prevented from hiring workers for functions that could be provided by workers who are covered by the lay-off.
Secondly, in response to your doubts regarding the discrimination you feel towards your colleagues, it is necessary to state in general terms that the labor law guarantees equality and non-discrimination in relation to workers of the same professional category performing an objectively similar work performance, in nature, quality and quantity. In your case, we do not have concrete elements to draw any conclusions, in addition to the fact that your contract is suspended under the Simplified Lay-Off regime, you are not even providing your work activity. It is important to know whether the colleagues you mention meet the legal requirements for equality and non-discrimination, and whether they are covered by this measure, in the exact terms you are in. If so, then it is up to you to claim and prove concrete facts that allow you to conclude in this regard.

(Response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)
The company I work for has communicated the suspension of my employment contract for an estimated 30 days. Now I was just sent an email, nothing in document, asking to report to work on the 2nd of June, when it should only be on the 13th. My question is, I am out of the country solving personal issues and I only have a trip to Portugal again for the 8th of June. How can I resolve the situation? Can the company do this? 

The company must follow legal and formal procedures when communicating with its workers when it is in a lay-off situation.
In this sense, the communication now sent, in our opinion, and when configuring a substantial change in the situation previously communicated, with evident impact on the lives of workers, must be made by registered letter.
Admitting the sending of an e-mail for speed and ease, it must, nevertheless, be accompanied by the sending of a formal document.
It is suggested that: the employee sends a reply to the company, thus maintaining open communication with the company, stating that the medium email is not the one considered the appropriate medium for this change and that, without prior notice, causes damage to him Seriously.

(reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados)

She was a permanent employee at a retail company. In February of this year I posted my letter of dismissal, having already a new job. I had to give the house 2 months, which collided with the company's entry into lay-off. I then terminated the contract with the company, but the new company is in lay-off and will continue, and I cannot admit myself at this moment, because I have no placement for me. Is there any support for these cases? Can you help?

According to the description, there is a situation of non-involuntary unemployment (when you left the company by your own decision), which does not give you the right to unemployment benefit. (although there may be room for regret, we understand that deadlines are over)
On the other hand, if you did not become part of the company's staff, or even integrate a lay-off process for that same fact, you will not be entitled to any compensation under this situation.

(reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados)

I am in preventive quarantine by order of the occupational physician, who was told that the company guaranteed the payment of 100% of the salary. Meanwhile, the company where I work, in April, indicated that I would go on Lay Off putting me in reduction of working hours. Later, at the beginning of May, he indicated that they would change my situation to suspend the employment contract. I happen to have a vacation scheduled in June, I received the vacation allowance but I did not receive the salary. Is the company going into debt to me?

The statutory statutory schemes have no implications for the payment of either the holiday allowance or the payment of remuneration; although this may not be due in its entirety due to the situation of reduced working hours, being, to that extent, proportional.
As for the suspension of the contract, as mentioned, it would be necessary to understand the underlying legal regime in order to understand the impact on remuneration and its calculation.

(reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados)

 

I was suspended from the employment contract all April. I worked in normal hours in May and now in June I may have to go to layoff again. This is cool? That is, can one enter and leave the layoff? Can I have a partial layoff in June?

Every change in the company with an impact on the employment relationship must be formally communicated to its employees.
The change in the lay-off regime in the company depends on the company complying with the formal requirements, defined by law, in order to be covered by the regime in force and that it is thus considered by the competent entities.
It is suggested that more information be requested.

(reply from Alexandra Abreu Lopes, Labor Lawyer at AFA Advogados)

 

My company started a simplified layoff period last April, maintaining it until today. In my case I am in layoff - suspension of employment contract - and my employer now proposes, at the end of this month, a Contract Revocation Agreement (Mutual Agreement). Terminations by mutual agreement, within quotas allowed by Social Security, with workers covered by the simplified layoff, is considered a dismissal, in the light of Decree-Law no. 10-G / 2020 (Article 13 - Prohibition of dismissal) ? Is it possible to proceed with these agreements, avoiding the 60-day period of "disgust" after the end of the simplified layoff, without being considered dismissal? The company tells me that it has a quota to make this agreement and that, in this way, my right to unemployment benefit is guaranteed. And yet?

There are doubts as to whether the revocation of employment contracts are included in article 13 of Law No. 10-G / 2020, since they are not true redundancies. Most of the doctrine, in the wake of what, on the subject of other issues, the courts have understood, argues that it is possible to promote terminations by agreement under the current legal constraints, precisely because, in conceptual terms, it is not a dismissal but a an alternative measure to it.

Even so, the circumstance of such an agreement being considered contrary to the aforementioned precept does not preclude access to unemployment benefits on the part of the worker, on the assumption that the documentation granted is correctly prepared, since the expected consequences are only reflect on the Employer, both in terms of the return of support, and in terms of the requirement to pay the full amount of unemployment benefits that may be granted to the Worker.

(Response from Rita Garcia Pereira, lawyer and master in labor law)

The company where I work has a layoff regime with a 50% reduction in hours. Of the 4 hired workers, I am the only one with some fieldwork. Certain services force me to spend several hours abroad and, sometimes, to spend nights out. Before this regime, the hours I worked outside of normal working hours were paid to me as overtime, but at the moment the company officials say that they cannot pay them, which is prohibited. Are they right? Can I simply refuse to do the work that goes beyond my 4 hours provided for in this layoff regime and have no future consequences?

Interpreting their doubts, with regard to the lay-off regime, in the modality of support for the temporary reduction of the normal working period, the worker may only work for the Employer within the reduced hours, and cannot exercise his activity outside those hours. stipulated, nor perform overtime. That is, it is not possible for the worker to work more hours than those that fit the stipulated hours reduction.

The violation of this rule implies non-compliance with measures to support the employer in a lay-off regime.

If this is the situation, and your schedule has been reduced by applying the lay off regime, you can only perform the stipulated schedule, in this case the 4 hours provided. Otherwise, working more than 4 hours, the lay-off regime will not apply to the worker, maintaining the normal work regime, as well as the remunerations and due remuneration.

(Reply from Nídia Nogueira Assis, lawyer at LRCAM - Sociedade de Advogados)

 

The company where I work went into a simplified lay-off in April, where some workers reduced their working hours to 50%, and others to 75% (it was my case). In May my schedule became 50% (20 hours per week), and now in June I started doing 24 hours per week.

My question is:

1. wouldn't it be necessary for each employee to sign a new document with the weekly hours they would have to do each month? Or can the company change the schedule each week, in a way that it deems necessary and employees do not need to be informed in advance?

 

It is up to the employer to determine the worker's working hours, within the legal limits. The law also sets limits on the hours of work that each worker can provide daily and weekly.

Changing the working hours during the lay-off regime, which occurs within the limits of the hours stipulated in the employment contract, does not require the employee's consent, and the Employer may change the hours, and must only inform the worker in advance.

Therefore, we believe that a signed document with the change in weekly hours will not be necessary, but that such change is communicated in advance to the worker.

 

2. Being in a simplified layoff, can the company force you to work 40 hours a week, or is there a maximum limit of hours, defined by law?

The lay-off regime is a temporary reduction regime for the normal working period or suspension of the contract. This regime implies that during a period of time the contract is suspended or the working hours are reduced.

Now, since the company is on a lay-off regime, it cannot compel the worker to work in a normal regime, that is, 40 hours a week.

If so, and the company requires workers to work 40 hours a week, the lay-off regime cannot be applied, as there is no temporary reduction in the normal working period.

 

3. In March, as sales fell a lot, the company asked employees to accept a salary cut of 5% or 10% depending on the value of wages. But when I received the salary the cut was 15%. This is cool? The last salary receipt the company gave to employees, was in February, since then it has not provided any more salary receipt. So there was no way to protest. All the following salaries have been paid to me and are correct under the law.

Not being aware of the specific situation, it is always worth mentioning that the salary due to the worker must always be paid in full and not subject to cuts.

In fact, without an agreement between worker and Employer, the Employer will not be able to proceed unilaterally to cut wages.

Therefore, we believe that such a situation, even if there is no concrete knowledge of the event, does not comply with the law.

(Reply from Nídia Nogueira Assis, lawyer at LRCAM - Sociedade de Advogados)

 

I've been in layoff since April 22 from 8:30 am to 12:30 pm and I have this schedule given by the employer in writing, my question is whether they want to change my schedule, but keeping the same hours if they can do it without do i agree?

It is up to the employer to determine the worker's working hours, within the legal limits. The law also sets limits on the hours of work that each worker can provide daily and weekly.

Changing the working hours during the lay-off regime, which occurs within the limits of the hours stipulated in the employment contract, does not require the employee's consent, and the Employer may change the hours, and must only inform the worker in advance, that is, for example, in case the change in the schedule happens within the time stipulated in the initial employment contract, imagine yourself within the 8 hours daily stipulated in that one, the worker does not need the same agreement, and such intention should only be communicated in advance.

If different, it will be, for example, in the case of the Employer changing the time for its realization outside the limits of the time established in the contract. Imagine, in an initial work contract with a schedule from 9:00 am to 18:00 pm, now on a lay-off basis, the Employer changes the schedule starting at 7:00 am or ending at 20:00 pm. Such a change, in addition to exceeding the limits stipulated in the contract, could also damage the routine and tasks already stipulated by the worker.

In these cases, it seems to us that the schedule change cannot happen without agreement between Employer and Worker.

(Reply from Nídia Nogueira Assis, lawyer at LRCAM - Sociedade de Advogados)

 

With regard to holidays, can companies discriminate against workers depending on whether they are in lay-off or not? Is it legal to force workers who are on lay-off to take x days of leave until a certain date and for workers who are not on lay-off to give a longer period for taking holidays?

There have been many doubts of workers, in a lay-off regime regarding the enjoyment of vacations, doubts that, at the beginning, started to be raised considering that many companies would be “forcing” workers to take their holidays.

Under the terms of the Labor Code, any worker has the right to vacation, which is an inalienable right.

In a situation of reduced activity or suspension of the employment contract in a situation of business crisis, commonly known as lay-off, the worker does not see the duration, schedule and enjoyment of his / her vacation impaired.

Such right remains, even in a lay-off regime, and the vacation period must be marked by agreement between Employer and worker. Once such an agreement has been reached, the holiday schedule is maintained, and the worker can take them, being entitled to payment, by the employer, of the holiday allowance under normal working conditions, without reduction.

In the event that it is not possible to reach an agreement between the Worker and the Employer, regarding the scheduling of vacation days, in the case of Small and Medium Enterprises [SME's] the Employer may schedule the workers' vacation period, however only during the period included between 1st of May and 31st of October, so that workers can be limited to enjoy their vacation only in this period of time.

In the case of a micro company [company with 1 to 10 workers], there is no time limit for the employer to schedule the vacation period, as mentioned above, and the employer can define the workers' vacation at any time of the year.

In a normal situation, in case none of these situations occurs, the Worker, seeing his vacations being coercively scheduled by the Employer, could refuse the same, or even take the judicial route. However, in the exceptional situation that the country has been going through, such a solution implemented by the Employer may be a measure to make the company, the workplace, feasible.

Therefore, the best hypothesis, if your Employer is not a SME or Microenterprise, will be, with the same to reach agreement on the scheduling of your vacation, if you understand that this limit was not only "imposed" as a way of make the company's activity feasible.

(Reply from Nídia Nogueira Assis, lawyer at LRCAM - Sociedade de Advogados)

 

I am 66 years old and receive a miserable pension of 226,02 euros, which naturally forces me to look for other means of income. It turns out that the company linked to tourism where I work 7 months a year went into lay-off and my application for Social Security was refused on the grounds of receiving that “huge” pension amount. Is this situation normal or can you work around it?

This specific case needs a better detailed analysis, but in general we can clarify that a worker can accumulate the receipt of a retributive compensation by applying the layoff regime with an old-age or (relative) disability pension that he / she pays simultaneously.

(Response from Maria Lourenço, lawyer at Magalhães Pereira Associados)

I find myself in a simplified layoff, with suspension of the employment contract. I have a fixed-term contract. My 3rd contract ends on July 13th and the employer has already informed me of the intention not to renew. I received a proposal from another company but they intend to start work immediately. If the dialogue fails and I am unable to disconnect immediately, can I terminate with just cause?

The reduction or suspension has no effect during the expiry of the contract, nor does it prevent a worker from terminating the contract, under the terms provided for in articles 400 and following of the Labor Code, or terminating the contract with just cause under the terms of articles 394 and following of the Labor Code.
The question asked does not result in any fact that constitutes a just cause for termination of the contract.
However, we note that any worker is free to terminate the contract, without the need to substantiate or justify his decision, and must comply with the legal notice provided for or pay compensation to the employer if he does not fully or partially meet the notice period. prior.

(Response from Maria Lourenço, lawyer at Magalhães Pereira Associados)

Under the simplified layoff regime, in which the worker is in total suspension of activity, is the employer exempt from TSU (23,75%) with regard to the twelfths of holiday and Christmas allowances?

The total exemption from the payment of Social Security contributions by the employer is only related to contributions related to the remuneration related to the months in which the company is the beneficiary of the measures.
The twelfths of holiday and Christmas allowances are not included in the due remuneration and must be paid by the employer in the normal terms agreed with the worker.

(Response from Maria Lourenço, lawyer at Magalhães Pereira Associados)

I would like to know if it is possible for a company (hotel) to continue in layoff, and ask workers to report on June 1 to work 7 hours a day with 2 days off and continue to receive the same salary they received when you were at layoff's house? 

From the question asked, we do not have information to understand whether the full working time in normal situation was 7 hours or not.
We note, however, that the percentage or number of hours of reduction from the normal working period is decided by the company and does not necessarily have to mean working half the time. Any time corresponding to a normal period of work shorter than that practiced in full time in a comparable situation is considered part-time (a reduction to half of the working hours, more than half or less than half may be involved; it may even be involved) reduce just 1 hour of daily work).
Regarding the retributive component, we also do not have data to answer this specific case. Some calculations would have to be made, but we inform you that Social Security has simulators available at http://www.seg-social.pt/layoff-covid-19
(Response from Maria Lourenço, lawyer at Magalhães Pereira Associados)

 

I hereby request your opinion regarding the rejection of the layoff. I am an administrative officer at the company that requested the layoff, however, I am a managing partner of another company, in which I do not enjoy any salary. Could this be the reason for the rejection of the layoff?

It is not possible to give a concrete answer to the question, without having access to the notification of rejection of simplified “lay-off” made by Social Security. The rejection may even be related to the failure of the requirements for the simplified lay-off, by the company where it is administrative.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I work in a company that entered and adopted telecommuting. During the same, we were informed that the company would enter a partial lay-off, with a 50% hourly reduction. This week we were told that we would finish teleworking in June and start working at the company's facilities and the partial lay-off would be maintained.
My question is that these new conditions are not at all beneficial for me, namely due to the commute I have to do daily. It takes me an hour and a half to commute to work and another hour and a half to commute home at the end, that is, I will lose 3 hours to work 4, every day.
I would never have opted for a part-time in a neighboring city but I find myself now in these conditions. Do I have any options or alternatives that I can present to the company?

The option will be to explain your situation to the employer and show him that it is beneficial for both of you to continue to do your teleworking work.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados) 

The restaurant was in lay-off (forced), until May 18th. With the lack of clarity, it reopened on 19 May. Until the end of month 2 of the employees were working. From the second half of May onwards, Social Security discounts became 11% of the employee's share + 23,75% of the employer, or the employer continues to be exempt, because in the meantime from June 1, he delivered extension of the lay-off based on “reduction” in billing?

The employer is only exempt as long as it is in the simplified lay-off regime or if one of the situations provided for in DL nº 10-G / 2020 is fulfilled.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

My company, on the 17th of March sent us home and on the 20th we received an email saying that we were in lay-off for 30 days. Only then did the letter arrive. On April 30th, I received a letter with a 30-day extension to the lay-off. So far they haven't sent me anything. Should I have waited for a new letter? I don't know what the next step the company will have to take to get back to work. Should they communicate a date for us to return to work?

The company has to inform the worker when he has to return to work. However, the worker can also contact his employer to find out when he should return to work, or if there is a date for his return to work. The letters are sometimes lost.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados) 

I would like a clarification, having signed a document from the boss to go into lay off from 22/3/2020, my boss called to decree that we would have to start working on 2/5/2020. Do I have to sign any documents?

No, but if the employer asks for a document to be signed as you become aware that you should return to work on the XNUMXth, there is no problem signing it.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I would like to obtain the following information. In my company I only have one employee who is on layoff (I am an unpaid managing partner). The layoff started in April and has been extended to May. If I need to make an invoice now in June, am I no longer entitled to the layoff? Even if it is a small amount, for example 100 €?

In this situation, in order to have access to the simplified lay-off, you must take into account the criterion of a sharp and sharp drop of 40% in billing compared to the same period of the previous year and not the criterion of break of billing in the period of 30 days prior to the request. In principle, you will have no problem issuing the 100,00 euro invoice.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

 

I hereby request a clarification on the legality of companies placing employees in the simplified layoff while they were still in a sanitary fence decreed by the minister's council: order 10-D- / 2020. In the specific case of the Ovar council where the country's first state of disaster was decreed. Labor law is subjective and does not cover a specific case like this. As soon as it was known that the layoff format will change and that there is not the same contribution from the State, quickly these same companies that supposedly intended to secure jobs started to fire or call in effective employees to negotiate their exits.

The application of the simplified layoff regime does not contend with the existence of a sanitary fence and with the implications of closing establishments that this sanitary fence involved. In fact, pursuant to DL 10G / 2020 of 26 March, it was determined that companies in a business crisis situation should be entitled to the layoff regime. And by situation of business crisis was understood, among others, the total or partial closure of the company or establishment resulting from the duty to close facilities and establishments provided for in Decree 2A / 2020 of 20 March (decree of state of emergency and which refers to which does not prejudice the measures already taken for Ovar) or by legislative or administrative determination pursuant to DL 10A / 2020 of 13 March or under the Basic Law for Civil Protection and the Basic Law on Health in relation to the establishment or company effectively closed and covering workers directly affected. What happens in the case of Ovar, in which the Resolution of the Council of Ministers no. 10-D / 2020 under the terms of articles 19 and 20 of the Basic Law of Civil Protection, decrees for Ovar the closure, between others, from:
- Commercial and service establishments, except those for the retail sale of food and health and hygiene goods, namely grocery stores, bakeries, mini-markets, supermarkets and hypermarkets, as well as pharmacies, banks and fuel stations, sale of newspapers , magazines and tobacco, and motor vehicle maintenance and repair service establishments, and computer equipment and funerary and related activities.
- Industrial establishments, with the exception of those related to sectors essential to the functioning of collective life, such as those intended for human and animal food and health and their packaging.
- Other establishments, in cases of force majeure, under conditions agreed by the public health authorities, duly authorized by joint order of the members of the Government responsible for the areas of the economy, internal administration and health.

As for the question of whether these companies have started to fire or call on permanent employees to negotiate their exits, attention is drawn to the following:
i) In the “simplified layoff” regime, during the period of application of the support measures, as well as in the following 60 days, the employer covered by those measures cannot terminate employment contracts under the terms of collective dismissal or dismissal for extinction of the job, provided for in articles 359 and 367 of the Labor Code.
ii) In the PEES “Progressive Resume Support” regime, which will be in force between August and December 2020 for companies that have benefited from the simplified layoff regime and that maintain billing losses equal to or greater than 40%, there is a prohibition on dismissal collective, for extinction of the job and for unsuitability during the application of the measure and in the subsequent 60 days.

(reply from Fátima Godinho, from Carneiro Pacheco & Associados, Law Firm)

I have a question: I work in a medium-sized company and the company is in a simplified lay-off with a 50% reduction in hours. I was lay off in the period from May 8th to the 31st of the same month and another month of lay off has been decreed. Now I worked from May 11th to 19th, until I had an accident at work. So I worked 6 days in lay off and I had one day left to complete the seven days at home. In the month's salary, the company told me that it paid on a lay-off basis. My question is whether when I return I will have the right to rest the days I was entitled to by 50%, or the company is correct and I will not be entitled to rest the days to which I was entitled. As far as I know, a medical break interrupts the lay-off mechanism, so I worked 100% and was paid 50% or not? I have already warned when I will be discharged on the 19th of this month and the company has already told me that I will then work the remaining days of this month and I will be paid for the same 50% simplified lay off, I would like to clarify.

The simplified layoff regime, in the form of reducing the normal working period, does not suspend the employment contract. If you are in a situation that entitles you to sickness benefit, it is due and not the amount of the compensatory remuneration of the layoff regime.
However, what he describes is that he suffered an accident at work. Having had an accident at work while he was working, and in the event of an absolute temporary incapacity for work, he is entitled to receive a daily allowance equal to 70 % of the remuneration in the first 12 months and 75% in the subsequent period pursuant to paragraph d) of paragraph 3 of article 48 of DL 98/2009 of 4/09 (calculated on the basis of the gross annual remuneration normally due to accident date).
You can only accumulate with the sickness benefit granted by Social Security, if the amount of the compensation is less than the sickness benefit.
Thus, these are the amounts you are entitled to receive during the period of absolute temporary disability.

(reply from Fátima Godinho, from Carneiro Pacheco & Associados, Law Firm)

My company went into partial lay-off, and the lay-off was set for 6 months. Since the beginning of my hiring, I am being highlighted to perform functions that are not within my position. I decided that I better try to change companies, but now I don't know if I can say goodbye in time of lay-off?

You can terminate the contract under the general terms (art 295º nº 3 of the Labor Code).
Thus, regardless of being on a layoff regime, and assuming that he has an open-ended contract, the worker always has the right to either terminate the employment contract under the legal terms (art. 400 of the Labor Code) or to terminate the contract. employment contract for just cause (provided the situations described in article 394 of the Labor Code are verified and in accordance with the procedure provided for in article 395).

(reply from Fátima Godinho, from Carneiro Pacheco & Associados, Law Firm) 

 

 

I own a cafe / bar. I joined the simplified lay-off until June 2020. I will join until August to support the progressive reform. Can I join the extraordinary financial incentive from September 2020?

To date, noting that the legislation has undergone systematic changes, there is nothing to prevent the two regimes in question from being reconciled, since the extraordinary financial incentive is associated with the existence of a deferred simplified lay off, as was the case, being that the support to the progressive reform presupposes the maintenance of the bond, reason why, unless legislative change, they are subject to cumulation, once the respective assumptions are met.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I work in a company that operates a restaurant, with about 18 workers. The company closed March 16 as a measure to prevent contagion. In view of the legal imposition of closure to the public, the company requested the lay off in the form of suspension of employment contracts only as of April 1, ending on April 30. The company opted to pay the full amount of March wages with the agreement of the workers so that when they restart the activity they would compensate the employer for the days they did not work in March.
At the beginning of May, the company requested an extension of the lay off along the same lines. However, due to decree law 20/2020 the company resumed its activity on May 24, reducing its activity to 24 hours a week. In view of the agreement we signed with the employer, is it possible to start compensating for hours not worked in March? In other words, can we fulfill 4 hours of reduction and another 4 hours of recovery on the same day or another that the company may request?
Is it possible for the company to put some workers in a reduction of 50%, others of 60%, others of 70%, others of 80%, and work with others at full time for example?
Another question, if the company again extends the lay off in June and, starting on June 20, wants to put all workers to work, giving up the lay off, are you still entitled to those 19 days of support?

According to your information, the company where you provide your work activity ended its activity on 16 March due to legal imposition. And it started to benefit from the Simplified Lay-Off regime since April 01st, with successive extensions, initially in the form of suspension of the employment contract and later changed to the mode of temporary reduction of working hours. Your first question concerns the validity of the agreement you entered into with the Company regarding the compensation of working time that you did not carry out between the 16th and the 31st of March. And if this compensation can occur in a period in which the company is find yourself still benefiting from the Simplified Lay Off regime in the modality of working hours reduction. Now, according to the data you provided, an agreement of this nature seems to be valid, since by agreement, working times can be changed as long as they do not exceed the maximum daily, weekly and legal limits and respect daily and rest periods. weekly. As for the possibility of using this compensation for working time during the extraordinary Simplified Lay-Off regime in the form of reducing working hours, this constitutes an abuse of rights, since such a situation is flagrantly contrary to the assumptions of the measure in question. In other words, it does not make any sense for a company to benefit from the extraordinary right to unilaterally reduce the working time of its workers and from an extraordinary allowance for that fact, when in reality it develops an activity that lacks the physical presence of these workers on a regular schedule. . Thus, as a worker covered by the Simplified Lay-Off regime, she cannot provide work to her employer beyond the hours that were expressly established in the modality of temporary reduction of the normal period of work. The compensation of your working times should therefore occur after the simplified Lay-Off period ends.
In response to your second question, please be aware that the Simplified Lay-Off regime allows your Employer to suspend some employment contracts, or to reduce normal working periods in relation to part of the workers and to suspend the employment contracts in relation to other workers. In practice, a company can still decide to submit the application to only a few workers and then expand the workers considered. The criterion does not have to be uniform or identical for everyone.
Finally, if your company gives up on the Simplified Lay-Off as of 20 June, the law provides such a possibility, without prejudice to the rights that were acquired in the period in which this measure of extraordinary support for the maintenance of jobs took place, that is, in this case until 19 June.

(response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

 

I am in lay off throughout the month of May. However, my father passed away. By law, if you were not on lay off you would be entitled to 5 days. I ask whether, in these circumstances, should I inform the employer to stop the suspension of the contract, or am I not entitled to full remuneration for those days?

The worker can “justifiably absent” up to 5 consecutive days, maintaining the remuneration, due to the death of a relative in the 1st degree in a straight line (art. 251 and 255 both of the Labor Code). “Absence” means the absence of a worker from the place where he or she should perform his / her activity during the normal period of work to which he / she is assigned. Since your employment contract is currently suspended, and for that reason you are not required to work and attend your place of work, you are not missing work. That is why, if the respective regime of absences does not apply, you do not have to report it to your employer, nor do you request the right to retribution.

(reply by Miguel Granger Rodrigues and Raquel Vieito from MGR Advogados RL.)

If I am effective in a company, if I want to terminate a contract during the lay off contract suspension regime to sign a contract with another entity, do I have to give 2 months' notice in the same company to disconnect from the contract?

The suspension of your employment contract does not prevent you from terminating your employment contract, in this case, by terminating it, and for this purpose you must comply with the notice period in general terms (art. 295, n. 3 of the Labor Code). For this purpose, if another term is not provided for in your employment contract or, if it exists, in the collective labor regulation instrument, you must give at least 30 or 60 days notice, depending on whether you have up to two years or more. two years of seniority, respectively. In the case of a fixed-term employment contract (term), the termination can be made at least 30 or 15 days in advance, depending on the duration of the contract is at least 6 months or less, and in the case of an uncertain term contract , must meet the duration of the contract that has already elapsed (art. 400 of the CT).

(reply by Miguel Granger Rodrigues and Raquel Vieito from MGR Advogados RL.)

Can I receive unemployment benefit, since the company was in lay-off in the last month worked? I was fired for not renewing a fixed term contract.

The lay-off regime (general or simplified) is independent of the Social Security regime regarding access to unemployment benefits. If your employer has communicated your opposition to renewing your employment contract, you are in a situation of involuntary unemployment that allows you to access your unemployment benefit. It is necessary to apply to the SS based on a declaration of termination of the company's contract and on a specific form for this purpose made available on the website of Seg. Social or in the service centers of the same.

(reply by Miguel Granger Rodrigues and Raquel Vieito from MGR Advogados RL.)

I am in lay-off, my doctor gave me a 12-day discharge. How is my situation? Will I continue to receive 100% of the lay-off?

From the content of your question, we understand that you are covered by the suspension of your employment contract by applying the lay-off regime by your employer. Bearing in mind that the sickness period occurred during the suspension of the employment contract, the social security sickness benefit is not allocated, maintaining the right to the compensation compensation provided for the lay-off regime, in accordance with the provisions of article 305, paragraph 7 of the Labor Code.

(reply by Miguel Granger Rodrigues and Raquel Vieito from MGR Advogados RL.)

 

I've been in a lay-off since May 13 at 50%, and the company, two days before we go home, informs me that it will change the lay-off to 70%, so they want us to continue working, but I already signed the paper as it was 50%. Can the company do this?

In the context of the simplified lay-off process, the employer must communicate to workers the application of the measure before the submission of the electronic application to the direct social security.
Such communication must be made in writing and must state the measure to be adopted, as well as the expected duration of the lay-off (start and end date).
The legal regime of the simplified lay-off does not stipulate any period in advance with which the communication must be made - however, it is a receptive statement, which means that it can only take effect from the moment it reaches the knowledge. of the worker.
Note that what the law requires is that your employer informs you in writing of the terms of the lay-off, so the application of the measure is not subject to your acceptance (and, therefore, the fact of not “signing” a new communication does not mean that it cannot be applied by the Company).
As it was not stipulated in the law a concrete advance for the written communication to be made to the workers, it is understood that as long as it has been informed, in writing, of the company's decision to adjust its normal period of work in lay-off to 70 % of the normal period, before the submission of the electronic application in direct social security, the Company can legitimately do so.
If you have not been informed in writing of the change in the terms of the measure, or have only been informed after the measure has already been requested by the Company, this means that the legally required procedures have not been complied with by the Company, so it is suggested to contact the Authority to the Working Conditions so that the situation can be assessed.

(reply from Joana Correia da Fonseca, Associate at SRS Advogados)

I work for a hotel that went into Lay-off in April. I did the night shift and they paid me another 50% on the base salary. The discounts for both Social Security and the IRS were made as a whole. Right now, I'm only being paid on the base salary, which is 2/3 of the 845,38 euros, excluding discounts… I wanted to know if I should receive on the salary + the 50% I received for the night shift, or is the amount correct? who are paying me?

Given that you regularly receive the 50% remuneration increase for the provision of work at night - a value that, as such, appears on your salary receipt and is declared to social security - it should be considered an integral part of your “remuneration normal gross income ”, for the purpose of calculating the compensation payable to it.
However, the scope of the regular installments that must be considered for the calculation of the remuneration compensation was limited by the provisions of article 4, paragraph 1, of Ordinance No. 94-A / 2020, of April 16, which was limited the remuneration benefits to be considered for the calculation of the remuneration compensation to “normally declared for social security and usually received by the worker, related to the basic remuneration, monthly premiums and regular monthly allowances”.
Thus, and in accordance with the Instructions for Completing the Appendix to Mod. 3056/1-DGSS and with the clarifications published by DGERT, the concept of “normal gross remuneration” is now restricted to the amounts that are declared to social security, in the declaration of remuneration, under the “P” code (basic remuneration), the “B” code (monthly premiums) and the “M” code (regular monthly allowances).
Now, if in your case the increase in remuneration for providing night work has been declared to Social Security under the code “T” (as it usually is), this means that this item will not be considered for the purposes of calculating the compensation - therefore, the action of your employer is legitimate.
If the 50% remuneration increase due to night work has been declared to Social Security as a basic remuneration or as a regular monthly allowance, it should have been considered for the calculation of the remuneration.
In order to facilitate the understanding of what is considered remuneration, I recommend consulting Order No. 2-I / SESS / 2011, of 16 February, which approved the table of remuneration codes necessary to complete the remuneration declaration, available at Social security website: http://www.seg-social.pt/documents/10152/596032/Desp%202-I-SESS-2011/7952f4a9-b8f5-4631-a0d9-c0e1cda9b2f5.
Finally, and with this information in mind, I advise you to confirm the situation with your employer.

(reply from Joana Correia da Fonseca, Associate at SRS Advogados)

I find myself in a simplified lay-off, with suspension of the employment contract. I have a fixed-term contract. My 3rd contract ends on July 13th and the employer has already communicated an intention not to renew it. I received a proposal from another company but intend to start work immediately. If the dialogue fails and I am unable to disconnect immediately, can I terminate with just cause?

Given that your employment contract is for a fixed term, you can disconnect from the employment relationship (without the need to use just cause), and for this purpose you must notify your employer of the decision to terminate the contract at least in advance 30 or 15 days, depending on the duration of the contract is at least six months or less (see article 400, paragraph 3 of the Labor Code).
If you want to leave immediately, without respecting the notice period mentioned above, you can do so, but you will have to pay your employer an amount equal to the basic fee and seniority corresponding to the missing notice period (cf. 401 of the Labor Code).

(reply from Joana Correia da Fonseca, Associate at SRS Advogados)

I was informed that I will be in lay-off until June 21st, but I had a question. I am effective, this means that I am entitled to 22 working days of vacation, but my employer says that, as I will be on lay off 2 months and 21 days, I lose 5 working days of vacation because I had my contract suspended during that time , this is by law, is it really how it works?

It is not how it works. The time for reducing the normal working period or contractual suspension determined under the lay-off does not affect the workers' salary and vacation period (see article 306, paragraph 1 of the Labor Code) . Thus, you are entitled to all vacation days that have already expired without the period in which the contract was suspended under the lay-off affecting your accounting.
We recommend that, with this information, clarify the situation with your employer.

(reply from Joana Correia da Fonseca, Associate at SRS Advogados)

I would like to clarify, with regard to the remuneration of a seller, in the lay-off period, more specifically if an average of the monthly commissions for the last 12 months is calculated (as in the case of sick leave or holiday allowances) and natal) or if it is only on the base salary? Because the remuneration in question in the employment contract is made up of basic salary, plus constant but variable commissions ... if my monthly remuneration for 20 years suffered discounts on the base salary and commissions, shouldn't the lay off also cover both situations?

Given that you receive monthly commissions - amounts that, as such, appear on your salary receipt and are declared to social security - they should be considered an integral part of your “normal gross remuneration”, for the purpose of calculating the remuneration compensation owed to him.
However, the scope of the regular installments that must be considered for the calculation of the remuneration compensation was limited by the provisions of article 4, paragraph 1, of Ordinance No. 94-A / 2020, of April 16, which was limited the remuneration benefits to be considered for the calculation of the remuneration compensation to “normally declared for social security and usually received by the worker, related to the basic remuneration, monthly premiums and regular monthly allowances”.
Thus, and in accordance with the Instructions for Completing the Appendix to Mod. 3056/1-DGSS and with the clarifications published by DGERT, the concept of “gross normal remuneration” is now limited to the amounts that are declared to social security, in the declaration of remuneration, under the “P” code (basic remuneration), the “B” code (monthly premiums) and the “M” code (regular monthly allowances).
Now, if in your case the commissions have been declared to Social Security under the code “C” (as they usually are), this means that, in principle, and although it leads to a painful situation for the worker, this item has not considered for the purpose of calculating the compensation.
In order to facilitate the understanding of what is considered remuneration, it is recommended to consult Order No. 2-I / SESS / 2011, of 16 February, which approved the table of remuneration codes necessary to complete the remuneration declaration, available on the Social Security website: http://www.seg-social.pt/documents/10152/596032/Desp%202-I-SESS-2011/7952f4a9-b8f5-4631-a0d9-c0e1cda9b2f5.
Even so, and as the subject raised controversy (namely motivated by the indignation of the automobile sector), Social Security, in the course of a webinar, ended up accepting that the inclusion of commissions in the calculation of retributive compensation would depend on a case by case assessment, in which The solution should be weighed according to the company's activity sector, the provisions of the applicable collective labor regulation instruments, the inclusion of commissions in the calculation of the holiday allowance, among other factors.
It is suggested that you present this situation to your employer (ie, the possibility that Social Security has opened of including commissions based on the characteristics of the specific case) or, if it is not receptive to your intervention, to the Authority for Conditions of Employment. Work - so that the situation can be concretely assessed.

(reply from Joana Correia da Fonseca, Associate at SRS Advogados)

 

 

I would like to know the following: Can a private nursery that put its workers on lay-off in the period in which it was forced to close, can it continue to charge monthly fees, even applying a 20% discount? Shouldn't the fact that workers are in lay-offs inform the parents of the children who attend the same kindergarten and pay these monthly fees? Regarding the discount applied to the monthly fee, shouldn't the nursery school justify its parents, how did it get that percentage? If we do not agree with the percentage of discount applied, as we consider that there is no equity (it receives the monthly fees and at the same time it receives the support of the state through the lay-off) what can we do?

As long as the grounds for which the lay off was maintained are maintained, it is possible for the nursery to negotiate the maintenance of the fees with or without discounts, depending on the agreement between the parties (nursery on the one hand and parents or those responsible for paying the fees, on the other)., these payments not constituting any breach of obligations related to this support. It will be necessary to pay special attention if the lay off has been requested on the basis of a break in invoicing equal to or greater than 40% in the reference periods, and must be gauged if the payment of those monthly payments (which will constitute the company's billing) does not compromise the claim of this plea.

(Response from Marta Cardoso Rodrigues, lawyer at CCA)

I work as a cook in a restaurant and I'm on lay-off. We opened the restaurant on the 18th of May, I worked 5 days and the boss gave me the letter to renew the lay-off and sent me home. What I wanted to know is whether those 5 days I worked are paid regardless of the lay-off?

The hours worked have to be paid in full (100%), without any reduction. It is true that the restaurant may have communicated its exclusion from the lay-off process and can later reinstate it again in the lay-off process, and those days worked should be remunerated normally and without being integrated into the respective process.

(Response from Marta Cardoso Rodrigues, lawyer at CCA)

In my current situation, the company I work for opened doors again and the lay off was removed from me and I will now receive the salary in full. My question would be if something happens to any circumstances that could compromise my presence at work, could the company legally put me back on layoff?

According to the legislation in force at the moment, it is possible to renew the extraordinary support for the maintenance of employment contracts in situations of business crisis established by Decree Law 10-G / 2020 (designated as simplified lay off) until June 30, 2020, being that the possibility of renewing the measure until the 31st of July has already been announced along the same lines and later in the coming months and possibly until the end of the year for companies that are still obliged to close or that have a break in revenue of at least 40%. Thus, if the company has requested an extension of the measure (even if it did not include it in the list of workers covered), it may still include it at any time during the month of June, and, for this purpose, it must communicate it in advance. that change. Therefore, it is clarified that the simplified lay off can only be requested / renewed based on fundamentals related to the business crisis, which are (i) the legal duty to close establishments, (ii) break in invoicing of at least 40% in a reference period or (iii) stoppage of the company due to suspension or cancellation of orders and not based on circumstances that could compromise the worker's presence at work.

(Response from Marta Cardoso Rodrigues, lawyer at CCA)

 

I was in Layoff but in the meantime I started working. My wife was at home with our son, but she will start working on May 27th. Is there a possibility that I will go back to Lay-off to stay with my child at home (when I have someone to replace me at work?

The lay-off is a measure that depends, exclusively, on the decision of the company that is in an eligible situation. As such, the answer to the question asked is negative. If the child attends school and is up to 12 years of age, he may justifiably miss work to accompany the minor, at least until the beginning of the school holidays.

(responds Nuno Ferreira Morgado, co-coordinating partner of PLMJ's Labor area)

I am in a simplified Lay-Off regime. If I find another job during the Lay-Off period, what are my rights and duties towards my current employer.

During the lay-off period, the worker may carry out another remunerated activity (safeguarding the fulfillment of the duty of loyalty in the non-competition modality). To do so, you must communicate this fact to the employer within five days of the start of the new activity. The retributive compensation will be reduced or excluded depending on the remuneration earned in the context of the new activity.

(responds Nuno Ferreira Morgado, co-coordinating partner of PLMJ's Labor area)

 

I would like to see a doubt clarified, I joined the service in a company and after a month of work Covid-19 appeared, the company sent me home without communicating, for what reason, the boss only told me to stay home without receiving or I said goodbye, I stayed at home on May 21, as nothing was communicated to me, I went to the company to find out what my situation was and to pay some money, because I no longer had money. I was told that I was in Lay-off, the boss told me that he had not received social security, to pay me, but since I was not told that I was in Lay-off, I would like to know how I can confirm that I really am or not in Lay-off?

In the context of the lay-off process (ordinary or simplified), the application of the measure must be communicated to workers. The fact that nothing was communicated indicates that it is either not in a lay-off, or the legally prescribed procedures have not been complied with. In any case, having received no payment, it is suggested to contact the Authority for Working Conditions so that it can assess the situation.

(responds Nuno Ferreira Morgado, co-coordinating partner of PLMJ's Labor area)

 

The company where I work will enter into a 20% partial lay-off, which will correspond to less than 1h30m of working hours every working day during the month of June. Since I have no time, I never worried about the hours at which the card will peak, especially at the exit, but given the legal context of the lay-off, should I be careful with the time to poke the point? 

The exemption from working hours does not interfere with the duty of attendance to which the worker is obliged, nor does it deprive the employer of the ability to control that attendance, through, for example, time clock chipping. Thus, the effects of the exemption from hours do not imply that the hours of entry and exit from work are not subject to registration. As such, it would be said, with or without lay-off, that the departure time should be recorded.

Reply from Filipe Escobar, lawyer at AR Montalvo & Associados

A clinic closed doors before going into lay-off, and now that it has resumed activity and is charging the hours not covered by the lay-off to employees, in tones of authoritarianism and bullying. Is billing hours legal? What can be done to report the situation, taking into account that none of the employees is unionized?

The situation, as described, appears to be illegal; to that extent, once the dialogue with the employer has ended, the situation can be reported to the Working Conditions Authority (ACT) and, ideally, to contact a lawyer who will advise the affected workers.

Reply from Filipe Escobar, lawyer at AR Montalvo & Associados

I have many doubts about the money that my firm paid me in the previous month. I work for Sapphire and my base salary is 635 €. I work at 40 hours and I received a total of € 577 in the lay-off. But didn't I have to receive the same amount?

The worker is entitled to receive, regardless of the reduction in the normal working period or the suspension of the employment contract, the amount corresponding to 2/3 of the gross normal remuneration, or the value of the Minimum Guaranteed Monthly Remuneration (RMMG) normal working hours, whichever is higher. Since the salary in the RMMG amount should be paid the corresponding amount, that is, 635,00 euros.

Reply from Filipe Escobar, lawyer at AR Montalvo & Associados

I was in lay-off and the company, in my receipt, only included the base salary, did not include the night hours. Every month I work at night and the company does not include this amount in the lay off. I wonder if it's cool. 

The employer must provide the worker with the document (receipt) containing the employee's identification, full name, registration number with the social security institution and the professional category of the worker, the basic remuneration and other benefits, as well as the period to which they refer, discounts or deductions and the net amount receivable (paragraph 3 of article 276 of the Labor Code). To this extent, the hours corresponding to night work must appear on the salary receipt, this is because night work must be paid with an increase of 25% in relation to the payment of equivalent work performed during the day, unless another regime is provided for in collective labor regulation instrument that is applicable.

Reply from Filipe Escobar, lawyer at AR Montalvo & Associados

I am in 50% lay-off and I have vacations scheduled for the last two weeks of June and the company will continue to lay-off. How will I receive these 10 days of vacation? Why lay-off or will these 10 days be paid 100%? Has the company already paid me the vacation allowance this month but taking into account that I will take 10 days only I get paid before the lay-off?

With regard to the vacation taken by a worker covered by the reduction or suspension of the employment contract, if there is an agreement between employer and worker, the vacation schedule can be maintained, and the same can be taken, with the worker entitled to receive during the period of employment. vacation the amount of the compensation plus the vacation allowance, total or proportional, that would be due to you under normal working conditions, that is, without any reduction.

Reply from Filipe Escobar, lawyer at AR Montalvo & Associados

I have some doubts that have arisen during the lay-off period, I would appreciate if possible to clarify them. I am a health professional with an employment contract with a private entity, but I have always provided health services under the green receipts regime to natural persons, and I have been accumulating this extra activity over the years. The company I have a contract with went into lay-off. Can I continue to carry out the activity on green receipts without jeopardizing the provision of the lay-off, since I do not work for a corporate body but for individuals. Should I communicate to the entity in lay off?

The employee covered by the lay-off has to communicate the exercise of paid activity outside the company, within five days from the beginning of the same. This obligation results essentially from the fact that - with the exception of the activities developed, during the application of the simplified lay-off, in the areas of social support, health, food production, logistics and distribution -, the remuneration obtained with a new activity started after the application of this measure be deducted from the amount of the compensation payable during the lay-off. Failure to comply with this duty results in the loss of the right to such compensation, the refund of the amounts received for that purpose and the practice of a disciplinary offense. This duty to communicate - to exercise paid activity outside the company - does not depend on how the activity is provided, which means that it remains, regardless of whether the remunerated activity is based on an employment or service provision contract or being provided to natural or legal persons. However, it only exists when the performance of this activity has become possible due to the reduction of the normal working period or the suspension of the employment contract, increasing the availability of the worker. In this case, since the worker already performed the activity of providing health services prior to their inclusion in the lay-off regime, there is, in principle, no obligation to notify the employer of the exercise of this activity. remunerated. However, even if, in the concrete situation, no deduction was applied to the remuneration compensation, in view of the type of activity developed, the worker will only be released from the fulfillment of this duty of communication if he demonstrates that: a) he has not significantly increased the volume of his activity due to the lay-off; and b) did not start to develop it in a period in which it could not do so, had it not been covered by the lay-off.

Reply from Nuno Pais Gomes and Maria Novo Baptista, lawyers from Sérvulo & Associados

About the termination of the lay-off. I am in lay-off and I would like to know how far in advance the company has to notify me to return to work.

The law requires that the duration of the lay-off (start and end) be communicated in advance - and in writing - to the workers covered. This means that, unless there is any change to the initial plan, in the course of the lay-off - which must always be communicated in advance -, the workers know, at the outset, that they must resume the activity, in the normal manner, immediately after the lay-off period previously communicated to them.

Reply from Nuno Pais Gomes and Maria Novo Baptista, lawyers from Sérvulo & Associados

I work in a national hotel chain and we are in lay-off. Some hotels will open in June, others only in July. It turns out that all workers will work for the hotels they are going to open. It was said that the lay-off regime will be changed to partial. in other words, an employee external to this unit 4 hours ago and the employee of this unit has another 4 hours. In order to open these hotels, my bosses did not have to remove employees from the units that are going to open?

In a business crisis situation the employer can choose to temporarily reduce normal working hours (for example, to reduce daily working hours from 8am to 4am) or suspend employment contracts. The same employer can choose to have all workers in the same regime (the reduction or the suspension) or can have, simultaneously, suspended contracts and others with reduction of the PNT [Normal Period of Work].

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados

I accumulate the dependent work from which I am in a simplified lay-off with the independent (simplified regime) part-time. Can I continue to issue green receipts as a self-employed person (maintaining the social security exemption)? Note: in the communication that the company sent me from the lay-off, it mentions the following “We must inform you that, under the terms of article 6, paragraph 7 of Decree-Law no. 10-G / 2020, of 26 March, and without prejudice to paragraph 9 of the same legal provision, “if the employee exercises remunerated activity outside the company, he must inform the employer, within five days of the beginning of the same, for the purposes of any reduction in retributive compensation, under penalty of losing the right to retributive compensation and, also, duty to refund the amounts received under this title, the omission constituting a disciplinary infraction ”.

During the layoff period (reduction or suspension period) workers are entitled to exercise another paid activity. The communication sent by the employer corresponds to the legal text that provides, precisely, the need to inform the company about the exercise of another paid activity outside the company, under penalty of the legal consequences referred to in the referred article 6, no. Decree-Law no. 7-G / 10, of 2020 March.
Exceptionally, the exercise of other remunerated activity outside the company may not imply the loss or reduction of the remuneration compensation, provided that the said activity is carried out in the areas of social support, health, food production, logistics and distribution.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados

The following question arose regarding the simplified lay-off (there are two, but they are somewhat interconnected): Can the manager, who is not covered by the lay-off, keep an open activity, if the company can work (in minimum services) with only one manager, even if all other requirements for support are met? In the same line of reasoning, knowing that companies that want to continue in the lay-off are required to reopen activity within 8 days, cannot this activity be reopened only with the manager? I do not see anything to the contrary described in the law, however it is mentioned several times in the media that it is mandatory to have an active worker, even when it reopens. In fact, it seems to me that it makes perfect sense that he can reopen only with a manager, if possible, and do minimal services, after all, the manager was not covered by support (until now), it would be fair that he tried to reopen just for him until you understand how the market is doing.

Under the terms of article 25-C of Decree-Law no. 10 -A / 2020, of 13 March (added by Decree-Law no. 20/2020), “Companies with establishments whose activities have been the object of of lifting a closure restriction after the end of the state of emergency or a restriction imposed by legislative or administrative determination, […], from that moment on, continue to be able to access the simplified lay-off mechanism, provided for in Decree -Law n .º 10 -G / 2020, of March 26, in its current wording, as long as they resume their activity within eight days. ”
The resumption of the activity must be ensured by at least one worker or a member of a statutory body (for example Manager), provided that the tasks that the Manager will perform are related to the company's corporate purpose, as explained and communicated by General Directorate for Employment and Labor Relations.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados

We are from the company Mar RASO LDA Nif 508617480 and we are in lay-off since 22/3 and we will be until May 19, so we were in lay-off for 2 months. Our activity is Bars and there is also a restaurant: We will resume the activity now on the 22nd of May. Our question is: When we interrupt the lay-off, if things don't go well, can we re-join the lay-off for another month? For example, if we open and have low sales or our sales are less than 40% compared to 2019, can we claim this situation and join the lay-off for another month?

Extraordinary support for the maintenance of employment contracts in situations of business crisis (simplified layoff) has the initial duration of one month, and may, exceptionally, be extended on a monthly basis, up to a maximum of three months.
Regarding the maintenance of a simplified layoff in progress (which has not ceased), whose initial basis was the total or partial closure of the company, due to the duty to close facilities and establishments, provided for in Decree No. 2-A / 2020, of March 20, companies to be able to maintain the simplified layoff will have to resume the activity within a maximum period of 8 days and be covered by one of the situations provided for in paragraph b) of paragraph 1 of article 3 of Decree-Law No. 10-G / 2020, namely: i) Total or partial stop of the activity of the company or establishment that results from the interruption of global supply chains, or from the suspension or cancellation of orders, which can be documented as proof; ii) An abrupt and accentuated break in at least 40% of the billing occurs in the period of thirty (consecutive) days prior to the request with the competent social security services, with reference to the monthly average of the two months prior to that period , or compared to the same period of the previous year, or even for those who started the activity less than 12 months ago, at the average of that year. Companies can stop simplified layoff processes at any time.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados

Would you like to know the final value of my salary in lay-off? My salary is 1.175 euros and is the lay-off due to suspension of work?

In the period of suspension of the employment contract (layoff), the worker is entitled to receive monthly, the minimum amount equal to two thirds of his gross / gross salary (that is, without discounts) or, if this value is lower than the minimum monthly remuneration guaranteed - € 635,00 - this will be the amount you will receive and, at the most three times the amount of the guaranteed minimum monthly remuneration - € 1.905,00. The calculation of the value of the monthly salary of the layoff worker for suspension of work can be consulted at: http://www.seg-social.pt/suspensao-calculo-do-valor-da-retribuicao. In the case presented, the worker will receive € 783,33, of which € 548,33 will be borne by Social Security and € 235,00 by the employer.

Reply from Raquel Caniço, lawyer at Caniço Advogados)

The Utilteam Company has 5 workers 4 are in lay-off and the managing partner who continues to work and earn income. The company has been in a lay-off since 17 March. The basis of the lay-off is the invoicing of less than 60%, how is this percentage accounted to which months they refer to, does VAT count for invoicing?

The criterion related to the abrupt break in invoicing, refers to 40% of break in invoicing. For the calculation of this amount, only what is declared in the SAFT to the Tax Authority is accounted for. The 40% drop is measured by comparing the average billing for the 30 days immediately preceding the date of the layoff order and the monthly average of the two months prior to the order or the same period in the previous year. If the company started its activity less than 12 months ago, it will refer to the comparison of the average billing of the 30 days prior to the date of the request in relation to the remaining billing period since it started the activity.

Reply from Raquel Caniço, lawyer at Caniço Advogados

Thank you, if possible, for clarifying my doubts regarding the work provided in outsourcing and the layoff in full or partial. I work in outsourcing in a company, that company will go into full and / or partial layoff, but my employer so far has not told me anything. Can I be included in the layoff, or if it is considered a service / contract provision, will I not be covered?

The simplified layoff regime currently in force is a measure aimed at maintaining the individual employment contract, not being applicable to service provision contracts.

Reply from Raquel Caniço, lawyer at Caniço Advogados

My husband is in layoff with a 50% reduction. I have two younger children who, with this situation, the closed schools are alone at home because they told me that with my husband in layoff I cannot ask for the support of assistance to the children for the closure of schools. That's true? I have accumulated negative hours in the company to be able to assist my children with lunch meals and support in classes.

First of all, we are not aware of the situation in which Mrs. Joana Vieira is, since only one of the parents who works for someone else can ask for an exceptional measure to support the family. The measure of exceptional support to the family is not only applicable to workers who are telecommuting, and in this specific case, those in layoff can benefit from this support. The support measure is for workers who miss care for children or other dependent minors, under 12 years old, or with chronic disability / illness, regardless of age, resulting from the closure of the educational establishment by decision of the health authority or from the government. We recall that, on the date we answered, establishments with daycare and pre-school are already open. You can request the support measure, if it fits, through Mod. GF-88-DGSS available on the Social Security website, IP. In the event that you are not eligible to benefit from the exceptional family support measure, the same form (Mod. GF-88-DGSS) will serve to justify absences for assistance to the family without losing any employment rights, except the salary while you are in this situation.

Reply from Raquel Caniço, lawyer at Caniço Advogados

The company I work for has put me in Layoff since 1 April. However, I noticed that the direct social security does not include my remuneration for April. I was given the receipt of my salary mentioning the social security discounts under layoff. But as far as I know, the company has until the 10th of the following month to send employee discounts to social security. We are on May 21st and my April salary is not included in the direct social security. Can you please elucidate me?

During the period for granting the extraordinary support provided for in Decree-Law no. 10-G / 2020, of March 26, the employer is entitled to the temporary exemption from payment to Social Security of the contributions under its responsibility, referring to all remuneration paid to workers covered by the layoff, as well as members of statutory bodies. The exemption from the payment of Social Security contributions in relation to the workers covered is officially recognized, so it does not need to be requested. The exemption refers to contributions related to remuneration for the months in which the company is the beneficiary of the measures. However, employers submit autonomous remuneration statements for the workers covered and pay the respective contributions. The exemption from the payment of contributions in relation to the workers covered is officially recognized, namely based on the information transmitted by IEFP, IP

Reply from Raquel Caniço, lawyer at Caniço Advogados

I would like to know the following question: I am in layoff, but my doctor gave me a 12-day discharge. How is my situation? Will I continue to receive 100% of the lay-off?

Yes, you will continue to receive the compensation you are entitled to, but you cannot accumulate this with social security sickness benefit. The Labor Code is clear on this issue, the social security sickness allowance (sick leave allowance) is not allocated for the sickness period that occurs during the suspension of the contract (layoff), maintaining the worker the right to compensation. .

Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados

The company where I work went into layoff, I still haven't received the month of April and the company claims that it only pays when the help money comes in. My question is can my boss do this? And I have a house, and all expenses are overdue because there has been no income for almost two months, because my boyfriend was fired, the company he worked for was in lay off and his contract was not renewed and as such this is not considered dismissal.

The boss cannot do what he is said to be doing. The remuneration compensation to which the worker is entitled is paid by the employer, who must make such payment on time. In case of punctual non-payment, the worker has the right to suspend the employment contract. And the punctual non-fulfillment of the remuneration obligations owed to workers can imply the immediate cessation of the support granted and the refund or payment, as the case may be, total or proportional, of the amounts already received or exempted. For this purpose, it is the responsibility of the competent public services in the areas of social security and employment and professional training (the Labor Code establishes) to deliver the part that falls to the employer, so that the employer can pay the worker compensation on time . What if it doesn't? Unfortunately, there is no legal provision that protects companies, and it is necessary to replace the State with those, which are then responsible for advancing amounts that they may not have and which may be the case that they can no longer access, eg through credit. The layoff regime establishes exceptional and temporary measures for situations of business crisis, and seeks to safeguard social protection for workers, ensure the maintenance of employment contracts and avoid dismissals for economic reasons in this critical phase that the country is experiencing; but it should not / should also lose sight of the real cash flow difficulties that companies may encounter.

Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados

I would like to clarify my doubt. I have a Base Salary: € 1.095; adds an exemption of Schedule of 274 €; transport allowance: 125 € and my work is partial: 8 hours / week. What is my pay in lay-off? Can the company change my part time to more hours? How should the company proceed in this change of hours for example to another 8 hours? Can I work in the remaining 32 Hours so that the company does not suffer?

What is the payoff in layoff? For the purposes of extraordinary support for maintaining the employment contract, the calculation of remuneration compensation should take into account the remuneration benefits normally declared for social security and usually received by the worker, relating to basic remuneration, monthly premiums and regular monthly allowances. In other words, for the specific case, the three amounts indicated (regarding the transport allowance, assuming that regular discounts are made for Social Security), so the reference amount is € 1.494,00 (€ 1.095,00) + € 274,00 + € 125,00). As, as indicated in the question, the percentage of partial work of 20% (8 hours in a total of 40 hours / week), the payoff in layoff must be € 996,00, of which € 298,80 corresponds to the payment to be paid for employer for part-time work and € 697,20 to compensation (of which € 209,16 is paid by the employer and € 488,04 supported by Social Security). Can employer increase workload? Yes, it can, because the exceptional measures are foreseen for a business crisis situation and are aimed at cases that can seriously affect the normal activity of companies, and such measures must be indispensable to ensure the viability of companies and the maintenance of jobs. Therefore, whenever it is found that the assumptions that led to a given layoff are not verified or have ceased, it must be appropriate to reality. How should company do for another 8 hours? Communicate this in writing to the employee, as well as to the competent social security department, with a nominative list of workers covered by the layoff, and the respective social security number. Can you work for the remaining 32 hours so that the company does not get hurt? During the period of reduction or suspension of the employment contract, the worker is entitled to exercise another paid activity, but must communicate to the employer, within 5 (five) days from the beginning of the same, for the purpose of any reduction in compensation retributive, under penalty of losing the right to it and of having to repay what you have received under this title, the omission also constituting a serious disciplinary offense.

Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados

I am an employee at a retail store that entered Lay-off at the end of March, having extended until the end of May. One day I received an email saying that I was going on vacation that same day, without having been given any prior information, and it was an imposition of the company. Can you do this? Didn't they have to contact me? I have not yet been informed if the lay-off has been raised, but have invoked paragraph 2 of article 306 of the CT.

The simplified lay-off (which we assume was the measure adopted in your case) follows, in everything that is not specially regulated in Decree-Law no. 10-G / 2020, of 26-3, the rules established for the general or common lay-off, in articles 298 and following of the Labor Code. Among these, there is article 306, whose paragraphs 1 and 2, determine that the suspension of the employment contract does not jeopardize the worker's right to vacation, whose appointment will be made in accordance with the general regime established in the Labor Code. Such a regime, despite stating, as a principle, that vacations will be scheduled by agreement between worker and employer, allows, however, the latter, and in the absence of such agreement, the booking of vacations by unilateral decision of yours - provided that within the period between May 1 and October 31. In other words, the company should, first, have tried to find out what its preferences are in terms of vacations and then have tried to reconcile them, as far as possible, with the respective conveniences - and only in the case of such a consensus if show impossible, make use of this prerogative that the law gives it.

Response from the Miranda & Associados Labor team

I have two jobs (two employment contracts). One full time, in which the employer joined the layoff since April 1, and one part time where I find myself working normally. In my full time job I have a basic salary of € 810 (without discounts) and € 654,90 with discounts. In part time I get € 400 already with discounts. The full time company that is in layoff made me a transfer of € 123,18 (total amount) with the following installments: 

description qty Abono Discount

basic salary: 810 €

Social support S (M) 28 59.08 €

employer contribution 28 25.32 €

lay off suspension 28 756 €

social mon 11% € 15.22

—————————————————————————————

 net total 123.18 €

 total to transfer € 123.18

 meal card 0.0

If I add 400 € of the part time + 123,18 € that paid me full time, it certainly does not give the national minimum wage. The company deducted me € 756, that is to say practically the entire salary amount, I know that social security reimburses the employer with 70% of that amount and the entity pays 30%. Shouldn't I be paid the minimum wage, at the very least?

In addition, they contacted me to say that yes it is a symbolic amount and if they want to receive more they can pay part of the holiday allowance or they gave me the alternative of leaving. But I am not sick and I do not want to be paid as a holiday allowance, because this is not a holiday. I just want to be paid what I'm entitled to. Can you please analyze this situation?

During the lay-off, the worker whose employment contract is suspended is entitled to receive monthly equivalent to 2/3 of his normal gross wage or the national minimum wage, if these 2/3 are below the respective amount. Since your base salary (gross) is 810,00 euros, and because 2/3 of this amount is 540,00 euros, you will be entitled, per month, to 635,00 euros (that is, equivalent to the national minimum wage for 2020 ). Of this amount, 30% (190,50 euros) will be borne by the employer and 70% (444,50 euros) by Social Security, who delivers it directly to the employer, so that they can process the full amount due each month. Because the value of the monthly installment due during the lay-off is subject to contributions to Social Security by the worker (11%), the amount that, strictly, will have to be paid is 565,15 euros. The fact of having another job, part-time, in which he earns 400,00 euros (net) monthly does not alter this answer, as it does not interfere with the amounts owed to him by his full-time employer. This would only happen if the performance of this parallel activity had started after going into lay-off and because of this (more precisely because, as a result of this, having free time, which I would not otherwise have, to dedicate to such activity). In such a case, the amount earned from working part-time for another employer would be taken into account to determine how much would have to be paid (with the support of Social Security) by the employer who put him on lay-off.

Response from the Miranda & Associados Labor team

I am a teacher at a private school, and this school year, for the first time, I am teaching Pedagogical Support teacher. In addition to Pedagogical Support for children with signage, I also taught the 4 classes of the First Cycle in the Plastic Expression and Experimental Teaching chains. When the mandatory closure of schools, it was suggested that I add to the areas that are my responsibility the ICT area (and it makes perfect sense). To my amazement, I received a letter in which I was informed that it had been placed in 50% Lay-Off and must telework the hours corresponding to half of my schedule. In April I received a brutal cut in my salary. The questions I ask are the following: Can I be placed in Lay-Off (50%) and simultaneously be teleworking (3 different curricular areas for classes from the XNUMXst to the XNUMXth year of schooling)? Can I be working as many hours as the professors of the class are working and be placed in another group (group of general service assistants), receiving less, being able and performing my duties through telework?

Of the various questions it raises, some relate to the lay-off regime, others to matters of professional classification and the object of the employment contract. Because these go beyond the object of this section, in addition to not being sufficiently supported by factual elements that allow their analysis, they will not be addressed here, limiting our response to aspects related to the lay-off. The lay-off can take two forms: reduction of the working period (daily and weekly) and suspension of the employment contract. In the first modality, the worker continues to perform his activity - even for a shorter period (daily and / or weekly), the effective duration of which is decided by the employer. And for that reason, imposing the diplomas that regulated, first the state of emergency (and its extensions), then the state of calamity (and its extension), the adoption of the teleworking regime whenever it proves possible in relation to the functions in question , there is nothing to prevent that, if this condition is verified, the (partial) exercise of the tasks referred to takes place under such a regime. The reduction in the working period naturally implies a reduction in the remuneration due to the worker. However, contrary to what happens in part-time situations, in the context of lay-off this reduction is not done in strictly proportional terms. In other words, the time reduction to 50% determined by your employer does not in itself imply a reduction in half of your remuneration. On the contrary, the rules relating to the lay-off establish a minimum amount to be received by the worker: 2/3 of the normal gross monthly salary or the value of the national minimum wage (fixed at 635,00 euros for 2020), whichever is higher.

Response from the Miranda & Associados Labor team

I am pregnant and my husband is on a layoff regime (he works only 3 days a week with a 40h weekly workload). I would like to know what my husband's remuneration is when he goes on paternity leave after the baby is born? The value of the normal salary or the amount we are now receiving from the layoff?

You will be entitled to receive, if you fulfill the necessary conditions for this purpose, the amount corresponding to that of the parental allowance, but the company will have to report this same fact to Social Security, removing the employee from the lay-off regime.

Reply from Félix Bernardo, lawyer at Caldeira Pires - Sociedade de Advogados

I work in a company that has a restaurant, that chose not to take away, that has 8 workers, and that requested the lay-off for the month of April, based on the legal imposition of closure to the public (Dec.Lei 10G / 2020 and Dec. Law 10A / 2020). As early as May 3, the company requested the extension of the lay-off along the same lines, for all workers and for the entire month of May, still without response. However, due to the decree Law 20/2020, article 25º C, companies with establishments whose activities have been subject to lifting of closure restriction after the end of the state of emergency or of restriction imposed by legislative or administrative determination, as is case of this company, from that moment on, they continue to be able to access the simplified lay-off mechanism, provided for in Decree -Law no. 10 -G / 2020, of 26 March, in its current wording, provided that they resume activity within eight days. My question is, as I have already submitted the request for the full month of May, but I must open it to the public by 25 May, so as not to lose support, how should I proceed to change the extension request already delivered? The idea was to put employees on a layoff regime for half the working time, and the other half to work, starting on May 25th.

Companies can change the lay-off requests made, and must report this fact to Social Security. According to information provided by the Social Security itself, companies can submit a new request when there are changes, namely for the purpose of resuming activity. The request must be made in a specific form to be made available soon by Social Security.

Reply from Félix Bernardo, lawyer at Caldeira Pires - Sociedade de Advogados

In the company where I work, the lay-off started on 10/04/2020 until 09/05. Then it was renewed until 08/06.
Will it be mandatory to renew for another 30 days, or can you renew only until 30/06? Is there a mandatory 30-day period or is it at the employer's discretion?

The request for extension of the simplified lay-off is monthly, without prejudice to the possibility of the company subsequently having the possibility of terminating or withdrawing the request for extension.

Reply from Félix Bernardo, lawyer at Caldeira Pires - Sociedade de Advogados

How can I give the company days of being in lay - off? It's possible? 

We have no information on the type of lay-off regime in question. However, it should be noted that if your employment contract is suspended you cannot perform any activity, if the lay-off regime is in effect in the modality of reduction of working time, you will only be able to perform your activity during the work period established in the lay-off regime.

Reply from Félix Bernardo, lawyer at Caldeira Pires - Sociedade de Advogados

I need help and clarification on what to do, my wife is in a lay-off regime and this month has not received any amount for the month of April and we are on 18/05. Last month he received tranches and it was only earlier this month that he was paid in March. He sent an email to the company that says he is waiting for the State's help and from what I read they would have to advance even though they still don't have a Social Security receipt.

With regard to the compensation payable to your wife (under the lay-off regime), we confirm that, in fact, the employer is obliged to pay the same on time. However, even if Social Security reimburses, however, the company (in 70% of the amount that the wife receives during the term of the lay-off) this does not legitimize the payment of compensation to be dependent on that moment, so, as well says, companies have to “advance” the payment to their workers. We take the opportunity to add that the delay in the payment of wages and compensation may, in certain situations, constitute just cause for the termination of the employment contract (promoted by the worker), so we suggest that you also study this route through legal consultation with a lawyer or ACT.

Reply from Luís Branco Lopes, BLMP lawyer

I work part time in a show company that closed on March 14th due to Covid's constraints. On March 18, we received an email from the company informing that the employer requested the lay-off regime during the 15-day period and that during this period our salary would be kept at 100%, partially guaranteed by Social Security and in part by the employer. After this period an assessment of the situation would be made and the necessary decisions made. On April 1, we actually received the usual 500 euros (with food allowance included) for the month of March. On April 2 we were informed that the lay-off regime had been extended for the month of April, and on the day 4th of May we received 267 euros for April. What do I question is should the employer inform us of the total term in which they plan to use the lay-off or is it only mandatory to give us the information that came to us in April? In May we were not informed of anything, at least until this date. 

We are of the opinion that the duty of information to workers, associated with the lay-off regime, applies not only at the initial moment but also at the time of extensions, which determines that, if the lay-off regime continues in May, there should have been a communication to that effect.
Additionally, it is worth mentioning that, if the remuneration of a part-time employment contract is less than the amount of the guaranteed minimum monthly remuneration (635 euros), the remuneration payable monthly to the worker must coincide with the salary usually earned (which seems to have happened in March but no longer in April 2020).

Reply from Luís Branco Lopes, BLMP lawyer

I signed a six-month contract, with a deadline of 30 June. I am considering terminating it and opting for other opportunities. So, what is the notice period that I must give the employer? Is the term counted in business days or calendar days including weekends? Making the termination what rights do I have to receive in the end? And finally, being in lay-off, can I be forced to take the 12 contractual days of vacation not taken yet or can I choose to receive the vacation at the end of the contract?

According to the information provided, you intend to terminate your employment contract, which you can do through two different channels: If you intend to terminate your employment relationship before 30 June, this must be subject to a complaint from your employer. employment contract, with a prior notice of 30 days (since it is a fixed-term employment contract with a foreseeable duration of 6 months). If you intend to terminate the employment relationship on June 30 (thus preventing it from renewing), you must promote its expiry, with 8 days prior notice (which determines that your written communication must reach power and knowledge of the company, no later than June 22, 2020).
We confirm that in both situations, the deadlines must be counted uninterruptedly (including weekends here). At the time of termination of the employment contract (by applying one of the methods presented herein), you will be entitled to the final employment credits, namely, holiday allowance and remuneration and Christmas allowance proportional to the effective duration of your fixed-term employment contract (and possibly others such as overtime pay and credit for hours of professional training). Regarding the last question, since, either through the termination or through the expiration promotion, the termination of the contract is subject to prior notice, the company can unilaterally determine that the vacation takes place immediately before the end of the contract. contract. Thus, if the company chooses not to demand the taking of vacations in these terms, it will have to pay the vacation remuneration at the time of "closing accounts" at the time of termination of the employment contract. One last note to mention that the lay-off regime does not harm, neither the booking nor the holiday enjoyment.

Reply from Luís Branco Lopes, BLMP lawyer

I have the status of worker-student and my company joined the support of the simplified lay off, with a temporary reduction of the normal period of work, which started on April 16 and has now been extended until next June 14. In my case, the provision of my work is being done from home. I will have a written evaluation test, on the 9th of June, so, given that the rights, duties and guarantees of the parties are maintained for the duration of the lay off, how does this situation work? I would like to thank you for your clarification, will I be able to provide service or not, both on the day before and on the day of the test and if I will have to make a written communication of this fact?

As rightly mentioned by the lady during the reduction resulting from the simplified lay-off regime, rights, duties and guarantees are maintained (which do not presuppose the full provision of work). Thus, the student worker continues to benefit from the rights expressly enshrined, namely those provided for in articles 89 and following of the Labor Code (here including absences on the day of the exam and on the day before).

Reply from Luís Branco Lopes, BLMP lawyer

I have a restaurant and I put the employees on lay-off. Let's imagine that between lunch and dinner, due to the reservations that have appeared, I realize that I need to remove employees from Lay-off just in time to work at dinner! How you do it without having problems with social security. Do I call the employee and take part in direct social security? Or do I need to be authorized and only then can the employee work?

The day in question is never considered for the purposes of a term, so you should consider participating in Social Security, at least, on the day immediately preceding the lay-off. You do not need authorization from the Social Security to return to, but you need prior communication along the lines described.

Response from Rita Garcia Pereira, lawyer

My company is in a layoff, and the atmosphere between bosses and workers has been terrible and I want to say goodbye. However, when presenting the letter, my superior says that I will have to return the money for the layoff, I have only received a paycheck in layoff, and I am going to the middle of another month in layoff, this is real, I cannot say goodbye without finishing the layoff. ? 

It is completely untrue. Whoever would have to return the amounts paid as a lay off would be the company, in case the employment ceased by extinction of the job or collective dismissal. Since the cessation of the worker's initiative ceases, there is nothing to be returned, much less for this one.

Response from Rita Garcia Pereira, lawyer 

Is it possible for a company that is in a lay off to continue working 100% with all workers and only pay 500 € of wages?

We do not have enough data to answer this question in concrete terms. We leave, however, note that a company in lay off can continue operating, it does not necessarily have to be closed or stopped entirely; whereas the employer can temporarily reduce normal working hours or suspend employment contracts; and that during the layoff the worker is entitled to receive a monthly minimum amount equal to two thirds of his normal gross remuneration, or the value of the minimum guaranteed monthly remuneration corresponding to his normal period of work, whichever is higher.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados - Sociedade de Advogados

I was telecommuting from March 16th to April 27th. Although the company delivered the social security papers for family assistance, paying out the rest that was not paid by the State. On the 27th, I was informed that I would go into 100% lay off in May. On the 15th, I was told that my contract would not be renewed, despite the fact that the company has already hired a person for my position. The justification was the drop in revenues of the company, which has been making a profit year after year. Can the company put me on lay-off so that I cannot immediately renew my employment contract? No right to compensation?

The reduction or suspension of the contract has no effect during the expiry period, nor does it prevent any of the parties from terminating the contract in general terms. In the case of expiry of the fixed-term contract due to verification of its term, in addition to the employment credits that are due, the employee is entitled to compensation corresponding to 18 days of basic remuneration and seniority for each full year of seniority, unless the lapse derives from the employee's declaration.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados - Sociedade de Advogados

I am a lay off restaurant worker, I have a question about my employment contract, it ends in September, in this time if I receive a job offer I can terminate my employment contract with my current one company? If so, should they pay my rights?

The reduction or suspension of the contract has no effect during the expiry period, nor does it prevent any of the parties from terminating the contract in general terms, which includes the possibility of terminating the contract on the employee's initiative. The only exceptions are in relation to collective redundancies and extinction of the job that, exceptionally, cannot be carried out in companies that use the simplified layoff. The denunciation does not confer the right to compensation, but only to the payment of overdue employment credits that are due on the date of termination of the contract.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados - Sociedade de Advogados

I work at a footwear company that went into lay-off on the 19th of March, and the lay-off was renewed for another month until the 19th of May. However, some colleagues have already resumed work, I have not yet. Before I go to work, I receive an email with vacations for workers who are still on lay off. As a rule our holidays are in August, this year the boss decided that our holidays will be in October. This is cool?

The vacation period is marked by agreement between the employer and the worker. In the absence of an agreement, the employer schedules the vacation. Without prejudice to being able to admit a different season, as a general rule, in small, medium or large company, the employer can only schedule the vacation period between May 1st and October 31st. If this procedure and requirements are respected, booking holidays for the month of October would be legal.

Response from Maria Lourenço, lawyer at Magalhães Pereira Associados - Sociedade de Advogados

My husband works at a gym that has no opening dates. He wins the minimum wage and was informed, only by word of mouth, that he was going to go into lay off and that he was going to win just € 565. Is this value correct? Is it legal for him not to sign any paper not to have been informed in writing of the lay-off?

The employer's decision to use the “simplified” lay-off, provided for and regulated in Decree-Law no. 10-G / 2020, of 26-3, is mandatorily communicated by himself, in writing and with an express indication of its duration foreseeable, to the affected workers. If the “simplified” lay-off materializes (as will be the case, due to the closure, due to the imposition of the law, of the gym) in a suspension of the employment contract, the worker will be entitled, for as long as it remains , at a monthly amount, which is paid directly by the employer, but whose amount is 70% reimbursed by Social Security. This amount, which the law calls “retributive compensation”, corresponds, as a rule, to 2/3 of the remuneration due to the worker - unless the value of these 2/3 is less than the minimum wage (fixed, for 2020, at € 635,00, XNUMX): when this happens, the worker will be entitled to this amount. Receiving your husband, usually, minimum wage, this is the amount that will continue to be owed to you in a “simplified” lay-off situation.

Response from the Miranda & Associados Labor team

I am a salesperson and my company says it is in lay off, none of the employees signed any type of paper. We are all at home in teleworking working all hours. The company has diverted the matter and we have no answer. How should I proceed?

The employer's decision to use the “simplified” lay-off, provided for and regulated in Decree-Law no. 10-G / 2020, of 26-3, is mandatorily communicated by himself, in writing and with an express indication of its duration foreseeable, to the affected workers. Such measure takes place, either in the reduction of daily and weekly work periods, which implies that workers continue to provide activity, but for less time and receiving proportionally less pay, or in the suspension of employment contracts, under which covered workers cease to perform any task, however earning a monthly amount, called retributive compensation, which is paid to them by the employer (and the amount of which is 70% reimbursed by Social Security). If, as you say, you are, as well as your colleagues, at home, performing your work on a full-time basis, your situation does not lead to a lay-off, in any of the aforementioned modalities, but to teleworking, the one that our legislator gave and continues to give preference to in the context of combating the spread of Covid-19. Teleworking, because it consists in the exercise, by the worker, of the activity due, but from his home and using information and communication technologies, gives the worker the right to the totality of his remuneration.

Response from the Miranda & Associados Labor team

I have worked in a company for about 20 years and in these 20 years I always worked at night. The company went into lay-off in April, would you like to know if the night subsidy also counts and if the language award does too? I receive (gross amounts) a maturity of € 850,00; night work (fixed) € 425,00; a language subsidy prize of € 41,04. Given this, how much should I receive?

In case of a “simplified” lay-off, provided for and regulated in Decree-Law No. 10-G / 2020, of 26-3, the worker is entitled to a monthly amount - the so-called “retributive compensation” - paid directly by employer (which, however, only supports 30% of its value, the remaining 70% being in charge of Social Security). The “retributive compensation” corresponds, as a rule, to 2/3 of the remuneration due to the worker, with the minimum and maximum limits, respectively, one and three minimum wages (ie, € 635,00 and € 1905,00). As for what should be considered retribution in order to determine, on the respective value, that of retributive compensation, Ordinance No. 94-A / 2020, of 16-4, came to establish, in Article 5, that for such This effect includes “the remuneration benefits normally declared for social security and usually received by the worker, relating to the basic remuneration, monthly premiums and regular monthly allowances”. When referring to specific Social Security rules, in particular the criteria defined therein, this Ordinance calls for Order No. 2-I / SESS / 2011, of 16-2, which regulates the Code of Contributory Regimes of the Social Security System Social - and whose annex identifies and distinguishes various components of remuneration. In particular, this Order differentiates the remuneration for night work from regular monthly allowances, therefore not including it. This means that, under the aforementioned Ordinance, and in your specific case, the basic fee and the language allowance (assuming it is paid monthly) will be taken into account for the calculation of the remuneration, but not already the remuneration for night work. .

Response from the Miranda & Associados Labor team

I would like to clarify whether the communication (by the company to the employee) of the change in the layoff regime (example: change from 20% to 50%) or the end of the layoff can be made only verbally or should there be a document to sign?

As stated, the question involves two situations: (1) communication of the term / end of the determined measure; and (2) notice of change in a determined measure (change from 20% to 50%). Starting with the first question. The determined measure must be communicated (before the beginning of its application) by the employer to each worker, with express mention of the respective reason and the respective foreseeable duration (start and end). For this purpose, the employer must also listen to union delegates and workers' committees, when they exist, and immediately send an electronic request to the competent social security department, accompanied by a statement containing a brief description of the business crisis situation, and nominative list of the workers covered, with the respective social security number. Therefore, having fulfilled this duty of prior notification to the worker of the duration of the measure, it is no longer required to re-communicate the term of the same measure. As for the form, the communication must (by law imposition) be made by written document. The employer may, at the time of delivery and for proof of delivery, request the signature / item of such communication by the worker. As for the second question, the employer must adopt the same procedure as the one mentioned above, also here having to respect the written form. As in the previous situation, for proof of delivery, the employer can ask the worker to affix the signature / rubric to the document.

Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados

One company put a number of employees on lay-off during the month of May. However, he came to the conclusion that some of the employees still need to reinstate that month. Is it possible to do so? How should the company proceed?

The exceptional measures envisaged for the business crisis situation target cases that can seriously affect the normal activity of companies and require the indispensability of such measures to ensure the viability of companies and the maintenance of jobs. Therefore, whenever it is found that the assumptions that led to the layoff are not verified or have ceased, a term must be put to it. Thus, regarding the question posed, if reintegration is possible, the employer must proceed accordingly and communicate, in writing, the layoff term to the workers. You should also report this circumstance to the competent social security department, with a nominative list of the workers covered, and the respective social security number.

Reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados

I have an 8-year-old daughter and when the school closed by government decree I gave the company extraordinary support for family assistance. However, the company went into lay off. It will reopen on the 18th and 1st of June, I have been told that I have to go to work. I work in a nursery. If the company ends the lay off as of June 1, is there any measure for me to be able to stay with my daughter for school closings until the end of the 3rd term, so that she can attend classes during the day? Or can I still support childcare by closing the school as I did before the company closed?

As is known, from March 16, 2020, teaching and non-teaching and training activities with students in public, private and cooperative schools and the social and solidarity sector of pre-school, basic education were suspended, secondary and higher education and in social facilities to support early childhood or disability, as well as in the training centers of direct or participated management of the network of the Institute of Employment and Professional Training, IP.
For the question posed here, we must first consider the absence regime for the protection of parenthood provided for in the exceptional and temporary measures relating to the COVID-19 disease pandemic. Thus, under this regime, absences from work due to unavoidable assistance to a child or other dependent under 12 years of age, or, regardless of age, with disability or illness, are considered justified, without loss of rights. chronic, resulting from suspension of teaching and non-teaching activities in person at a school or social support equipment for early childhood or disability. In this case, the worker must report his absence in the general terms foreseen in the Labor Code for absences and will have the right to receive exceptional monthly support, whose minimum and maximum limits are established by law.
Note that this support cannot be received simultaneously by both parents and is only received once, regardless of the number of dependent children or dependents.
The fact that the company subsequently entered into a layoff should not prejudice the application of the aforementioned regime, so that, if this happened, after the end of the layoff, the employee must resort again to the regime of exceptional and temporary measures.

(reply from Nuno Sanches de Baena Ennes, lawyer of counsel at Ulrich, Severien & Associados) 

 

My company put me on lay-off with the suspension of my employment contract, having started the lay-off on 07/04 with a duration of one month until 07/05. Had you scheduled a vacation day, is it suspended or being on lay-off does it have vacation taken?

The reduction or suspension does not affect the booking and enjoyment of holidays, in general terms, with the worker entitled to payment by the employer of the holiday allowance due under normal working conditions.
Thus, in relation to the enjoyment of scheduled vacations, per worker covered by the reduction or suspension of the employment contract, if there is an agreement between employer and worker, the scheduling of vacations can be maintained, and they are taken, with the worker entitled to receive during the vacation period the amount of the compensation plus the vacation allowance, total or proportional, that would be due under normal working conditions, that is, without any reduction.

(reply from Ricardo Lourenço da Silva, Lawyer at Antas da Cunha ECIJA) 

I have been on lay off since the beginning of the month with work suspension. However, for about 15 days I continued to respond to emails and to do some work, such as publications on social networks. Until I understood that being on lay off with suspension I shouldn't be doing these jobs. I would like to get av / help, since now and then I still receive emails to which I am not responding. Can I be penalized for that?

The suspension of the employment contract determines the total suspension of the employee's activity, so he cannot be demanded of any benefit.
During this period of suspension, the worker is entitled to maintain the employment contract and to a remuneration of at least two thirds (however, it cannot be less than a guaranteed minimum monthly remuneration). In addition, it maintains the social benefits to which it is entitled and can exercise paid activity in another company, as long as it is not a competitor. However, in the latter case, you must always inform the employer, up to five days after the start of the activity.

(reply from Ricardo Lourenço da Silva, Lawyer at Antas da Cunha ECIJA) 

I am assisting my daughter due to the closure of schools. My daughter has a chronic illness. Now my company went into partial lay off saying that I have to go to the workplace every day at 2am. This is cool? How is my daughter's situation?

There is a possibility of justifying absences of workers who have to miss work to provide assistance to a child (or other dependent dependent) under 12 years old, or regardless of age, if disabled or with a chronic illness, following and during the period of suspension of classroom teaching and non-teaching activities.
In these cases, you are entitled to exceptional monthly or proportional financial support corresponding to 2/3 of your basic remuneration, which is supported equally by the employer and Social Security. This support has a minimum limit of € 635 and a maximum of € 1.905 (3 times the RMMG - Guaranteed Minimum Monthly Remuneration), paid according to the number of days the employee is absent.
In view of the situation described, You must inform the employer of the reason for the absence through the declaration Mod. GF88-DGSS. The declaration also serves to justify absences from work. The declaration must contain the social security identification number (NISS) of the worker, the minor and the other parent.

(reply from Ricardo Lourenço da Silva, Lawyer at Antas da Cunha ECIJA)

I work part-time, part-time, work 28 hours a week and receive 500 euros. Since I am paid below the minimum wage, and I am currently on layoff, am I going to take a salary cut or do I receive the full wage?

We do not have information regarding the type of lay off that you are in: reduction of the normal working period or suspension of the contract. In any case, and responding in general, in this case, in the case of a part-time job situation, the worker will thus receive, during the lay off, the proportional value of the minimum guaranteed monthly remuneration corresponding to his period normal working.

(reply from Ricardo Lourenço da Silva, Lawyer at Antas da Cunha ECIJA)

My company mentioned that it was going to go into lay-off at the beginning of April, with some employees remaining on a 50% reduction in hours and I stayed at home all month by order of the company. On April 27, they “asked me” to go to the company to sign a document in which they agreed to receive only 2/3 of the salary, with my salary being the minimum wage, a document because after all the company did not go into lay-off. Is the "request" made to me legal?

The Labor Code establishes as a general principle the prohibition of the employer “to reduce the remuneration, except in the cases provided for in this Code or in an instrument of collective labor regulation”. That said, despite the principle of irreducibility, this rule includes some exceptions, expressly provided for in the Labor Code, namely the lay off regime. It turns out that, having been rejected the application for the lay-off regime as mentioned, the company cannot, therefore, proceed with the retributive reduction to 2/3.
In addition, and since it states that its salary is the “minimum wage”, it should be added that, even in a lay-off situation, its base salary could not be less than the amount it currently receives. Since the lay-off regime determines that the worker in this regime cannot receive an amount lower than a guaranteed minimum monthly wage - € 635,00.
Finally, add just one note (which, even so, does not justify the document presented to you for payment of 2/3 out of a lay off situation): if the reason for the rejection of the lay off is related to a situation in that the company does not fit the situation of business crisis, it is worth noting that the company may, nonetheless, consider another measure provided for in the Labor Code, relating to the temporary closure or reduction of the activity, in which case it may suspend the employment contracts paying 75% of the base fee.

(reply from Ricardo Lourenço da Silva, Lawyer at Antas da Cunha ECIJA) 

 

I would like to know if all the companies that entered into a lay-off have already received the money to pay due employees. Could you enlighten me?

No. There are several orders still to be considered and others that are in the process of being corrected, so it is expected that there will be payments until at least the 19th of May.

(reply from Nuno Ferreira Morgado, coordinating partner of PLMJ Labor)

I won € 710 + € 87 in seniority, I went into a 30% partial simplified lay off on 04/04/2020 at the end of the month what would my salary have to be, this 30% and should I have received the part I worked in full?

Taking into account the situation described, the worker should earn the amount of 635 euros per month, with the hours of work paid in full by the employer, without any support from social security. As for the remainder until the total of 635 euros, this amount is also advanced by the employer, who will be reimbursed in 70% of the same.

(reply from Nuno Ferreira Morgado, coordinating partner of PLMJ Labor)

I have a debt on the lay-off wages. The salary he received was 650 euros for being a driver. It has now been reduced to 635 euros, receiving 250 euros of production premium for the hours worked including Saturdays. Without food allowance, I would give about 705 euros on average. I currently work about 35 hours a week. Above 20 hours of layoff, I do not do Saturdays, but what I was guaranteed was that I would not receive a food allowance or overtime, which I would receive for 635 euros. How much legally do I have to receive in layoff?

We will assume for the purposes of this answer that the reader was covered by a simplified lay-off process in the modality of working time reduction (20 hours).
Within the scope of the lay-off in the modality of working time reduction, all working hours must be paid in full by the employer. This remuneration will be complemented by the necessary amount, up to 2/3 of the remuneration (with the payment of the minimum amount of 635 euros being ensured). Now, in the specific case, admitting that before the lay-off he earned 900 euros per month (650 euros + 250 euros), the minimum amount that must be guaranteed is 635 euros, since the 2/3 of 900 euros is below that minimum threshold.
As for the food allowance, it must be paid proportionally taking into account the reduction in working time.
Finally, assuming that you tell us that under the lay-off your working time has been reduced to 20 hours / week, but that, in reality, you are working 35 hours a week, the following should be mentioned:
It follows from article 11 no. 1 al. g) the simplified lay-off legal regime (DL 10-G / 2020), which prohibits the provision of work to the employer itself by a worker covered by the extraordinary support measure for the maintenance of an employment contract in the form of temporary reduction of the period normal working hours, beyond the established schedule. In other words, it is not possible to work more hours than those that fall under the measure to reduce working time.
The violation of this rule may imply the immediate cessation of social security support to the employer and the refund or payment of what had already been delivered.
It seems to us, too, that this situation will imply the non-applicability of the lay-off to the worker, who should start working in the normal regime and receive the corresponding remuneration.

(reply from Nuno Ferreira Morgado, coordinating partner of PLMJ Labor)

 

As I understand it, a company that adheres to the lay-off regime has a legal obligation to inform its employees. In the case of a company that has adhered to this regime and that has contract workers and workers under the provision of services (green receipts), is this mandatory valid in both cases?

Can the lay-off company present any type of billing?

If the company that is in a business crisis situation chooses to go into layoff and access the extraordinary support for the maintenance of the employment contract, either in the form of temporary reduction of the normal working period or in the form of suspension of the employment contract, it has to communicate the decision to the workers in writing, indicating the expected duration.

The lay-off regime (provided for in the Labor Code and Decree-Law No. 10-G / 2020 of 26 March) applies only to employment contracts and not to service provision contracts.

A lay-off company can continue to operate, it does not necessarily have to be closed or stopped entirely.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

 

Being a worker at a firm in Marinha Grande, the firm went into 50% Lay-Off, instead of 40 hours a week I started working 20 hours. My question is whether this procedure is legal?

When the company chooses to go into layoff and access the extraordinary support for the maintenance of the employment contract, it can choose to apply the modality of temporary reduction of the normal working period or the modality of suspension of the employment contract, which has to communicate in writing to the workers, indicating the foreseeable duration, after hearing the union delegates and workers' commissions, when they exist.

In case the chosen modality is the temporary reduction of the normal working period (PNT), it is up to the company to determine the decrease in the number of hours corresponding to the PNT, daily or weekly. You can cut it in half, as it seems to be the case, or reduce it to another workload greater than or less than half that of the normal PNT.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

 

We are a small restaurant that resorted to Lay off on April 6th. So far we have no prediction of when the payment will be made, or who to turn to, since others we know and have been submitted to a posteriori have not yet received. In the direct SS line it is completely impossible to obtain any information.

Unfortunately, there are still many companies waiting for the payment of the layoff, which is regrettable. Several deadlines for payment of support have been reported by the Government, but what we see is that these deadlines have not been met. Supposedly a company that went into layoff before April 10, and that has fully and punctually complied with all the procedure and legal requirements, should have already received the support, in order to allow the employer to pay the workers' compensation on time. However, we do not know the reasons for this delay.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

Can a company go into insolvency on a lay-off basis? If so, how do you inform employees? I have been without pay for 60 days and I am effective. I don't want to press charges but I'm afraid the company will go bankrupt.

Yes, a company that is in a lay off regime can go into insolvency. In fact, companies have a duty to file for insolvency within 30 days of the date on which they were, or should have been, aware of the insolvency situation. Without prejudice to the duty of filing for insolvency, any creditor of the company may also apply for insolvency of the same, including the workers themselves who will benefit from credit privileges.
As for information to workers, there is no legal obligation to communicate prior to filing for insolvency, although often the managers / administrators themselves transmit this information to workers so that they can later claim their work credits and can activate the Social Security Fund. Wage Guarantee (FGS). FGS aims to ensure the payment to the worker of credits resulting from the employment contract or the violation or its termination. The said payment will only be guaranteed when it is required from the FGS up to one year from the day following the day on which the employment contract ended, and the FGS will only cover payments that should have been made to the worker by the employer within six months prior to the start of the insolvency proceedings. Thus, one of the conditions for accessing the FGS is the declaration of insolvency of the employer.
Notwithstanding the above, and in the absence of timely payment of your remuneration, you can always terminate your employment contract with just cause, in order to apply, as long as you fulfill the conditions of attribution, unemployment benefit.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

In my situation, I would be effective in my company in the period in which the lay off took place, my question is how will my situation be when we return to work, which from what I was informed will be on the 18th of May. Will I have to wait two more months to be entitled to effectiveness or am I supposed to be effective in the company?

During the term of the lay off, the rights, duties and guarantees of the parties are maintained, pursuant to the terms of the Labor Code. Therefore, based on the assumption that your contract was a fixed-term employment contract and that it reached the maximum duration or renewals permitted by law, then your contract became a permanent employment contract during the course of the lay off. .

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

Can a company that is 100% in lay off, bill? It would be the Managing Partner to bill. What is the maximum amount that can be invoiced while still being entitled to Layoff support?

A lay-off company is not legally prevented from invoicing. However, it will always be necessary to take into account the grounds invoked for the lay off request.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

In my company, all employees were given a paper to collect our signatures, which stated that the company would go into layoff from May 01st to 31st. At the same time, we were handed a sheet duly signed and stamped by the bosses on how the company went into layoff. The company in question is in the manufacturing area and therefore has cutters and seamstresses.
From May 4th to 8th I worked 40h a week. Just like all seamstresses. the rest of the cutters are at home.
Now I would like to know if I am going to be compensated monetarily. Since I receive € 670 monthly, in layoff I would receive € 635.
My colleagues at home will receive € 635, and I, even if I receive € 670, it's just another € 35 for 40 hours. If this happens is it legal or do I have to be properly compensated?

The company will be able to access the simplified lay-off, placing each worker covered in one of two modalities: suspension of employment contract or reduction of the normal working period. Only when placed in the latter does the worker continue to provide work (with a reduction in his normal working period and consequently in remuneration). Although the initial maximum period required by the company may have been one month (from 1 to 31 May), for each worker a specific period of suspension or reduction must have been defined, which can be 30 days or less. What the legal regime determines is that the requesting company indicate a global period of application of the measure (maximum of 30 days, exceptionally extendable), allowing after that for each worker a specific period is indicated, which, since contained in the general period 30 days indicated, does not have to coincide with that of other workers and may be less than 30 days.
In the specific case of the question posed, it is not noticeable in what modality the worker was placed or the number of lay-off days required for this particular worker. It is possible that the company has requested, for this worker, a lay-off period that was less than 30 days, for example, from 9 to 31 May. In that case, there is no irregularity in the fact that the worker worked normally in the week of 4 to 8 May.
However, if the period specifically indicated for this worker covered the 4th to the 8th of May, then the (normal) provision of work during that period constitutes non-compliance with the rules established for the simplified lay-off, which will result in the obligation the employer to return the support he has received from Social Security.
In addition, the days on which the worker performed normal work (ie during normal working hours) must be paid in full by the employer.

(reply from Marta Pinto da Silva, partner, and Marília Duarte, associate, Luiz Gomes & Associados)

My boss has put me on lay off since March, I still haven't received the month of April. How do I know if they are actually receiving social security under the lay off?

As a worker, you will not have access to that information. However, it is up to the employer to pay the worker compensation on time, and Social Security will hand over to the employer their 70% contribution. Although Social Security must deliver to employers the amount of support due to the employer’s time to be able to pay compensation on time to lay-off workers, and although it is already known that, at least in some cases of companies in lay-off in the In April, Social Security support was not delivered on time, the fact is that the employer is still obliged to pay workers compensation on time, and that the delay in that payment constitutes a serious offense.
Therefore, you should try to find out from your employer why you have not yet received the retributive compensation corresponding to the month of April, as the employer is obliged to pay you the retributive compensation regardless of whether or not you have already received the respective Social Security contribution. .

(reply from Marta Pinto da Silva, partner, and Marília Duarte, associate, Luiz Gomes & Associados)

 

Following some questions and answers that have been clarified, I also have two, for which I have not yet found an answer.
This is a situation in which the employer opted to place his workers on Layoff regime, by suspending employment contracts, as of April 1, 2020 (again extending to May 1), for not providing a essential service in the height of the country's State of Emergency, and consequently having to close its doors to the public. It is a dental clinic that has not even maintained its emergency department. In this case, and taking into account that, in a normal period, workers operate according to a bank record of hours, as defined in the Labor Code, the employer can deduct bank hours related to the time that the workers were obliged to remain in work. Layoff, and demand compensation for hours to replace those that were then missing when the business reopened?

During the period of suspension of employment contracts, motivated by a simplified lay-off, the worker's obligations that do not presuppose the effective provision of work are maintained, while the others are suspended.
This means that the worker only maintains obligations that do not imply the exercise of his activity (such as the obligation of confidentiality), but not those that presuppose the exercise of his activity (eg duty of appearance, punctuality, compliance with the work schedule). Thus, compliance with the hour bank regime will be suspended during the simplified lay-off period, so the employer will not be able to discount the contract suspension time and demand it later, that is, he will not be able to demand the replacement of the hours that were missing during the suspension.

Still in that same situation, taking into account that the State of Emergency period has now been lifted, and the service reopens under certain health and safety conditions, and a reopening date for the 11th of December has now been set. May 2020, can the employer demand that his workers return to work, but reduce his working time to 2/3 and consecutively pay 2/3 of the salary, that is, enjoying a new Layoff period under other conditions? And how should they proceed to formalize this request? Does this remain possible in a situation where the worker receives the national minimum wage? I identified in paragraph 1 a) of article 305 of the Labor Code that at least the worker will receive the minimum guaranteed monthly remuneration corresponding to his normal working period, that is, in 2020, as published in the Diário da Republic in Decree-Law No. 167/2019, the value of the Minimum Guaranteed Monthly Remuneration (RMMG), 635 euros.

Access to the simplified lay-off may be required as long as Decree-Law No. 10-G / 2020, of 26 March, remains in force, which is expected to remain in effect until 30 June 2020, but admits the hypothesis that its validity will be extended for another 3 months, depending on the weighting that is made according to the evolution of the economic and social consequences of Covid -19.
The simplified lay-off, once required, has the maximum initial duration of one month, but can, exceptionally, be extended monthly, up to a maximum of three months.
In these terms, the employer may request the extension of the simplified lay-off for a further maximum period of 30 days.
To do so, you must submit through the “Covid-19 - Layoff Extension Request” tab, the extension form available here: http://www.seg-social.pt/documents/10152/16982645/RC_3057. pdf / 4ec02973-0f95-4289-a42d-5127d34d47f4
The Excel Mod file must be attached to that form. RC3057 / 1-DGSS, containing the nominative list of workers covered.
Although not expressly provided for in the Law, it has already been informed by Social Security that the employer may, in the request for extension, choose a different type of lay-off, so that workers who were suspended may now be subject to the reduction of the normal period working hours (for example, working 2/3 of your normal working hours).
A worker who sees his normal working period reduced to 2/3 will be reduced to 2/3 as well.
However, in cases where the reduced wage becomes less than the national minimum wage, the worker will be entitled to compensation in the amount necessary to complete the national minimum wage.
Thus, a worker who, before the reduction, earned € 635,00 (value of the national minimum wage for mainland Portugal), starts to receive, after the reduction: a remuneration, to be fully borne by the employer, of € 423,33, and a retributive compensation of € 211,66, to be advanced in full by the employer, but of which the amount of 70% will be reimbursed to you by Social Security.

(reply from Marta Pinto da Silva, partner, and Marília Duarte, associate, Luiz Gomes & Associados)

I am here to request information regarding wages in the lay off period. I work at night and receive my salary plus 50% additional night work. My question is: Am I entitled to receive the base salary plus 50% or only the base salary? (650,00 euros + 325,00 euros = 975,00 euros or only 650,00 euros)?

The remuneration compensation due to the worker covered by the simplified lay-off measure, in the suspension mode, corresponds to 2/3 of his normal gross remuneration, or the value of the minimum guaranteed monthly remuneration (€ 635,00) corresponding to his normal period of work, whichever is higher, up to three times the minimum guaranteed monthly remuneration (€ 1.905,00).
Regularly receiving (monthly) the remuneration increase for the provision of work on a nightly basis (amount that, as such, must appear on the salary receipt and be declared to Social Security), it should be considered as part of the “normal gross remuneration” , for the purpose of calculating retributive compensation.
However, Ordinance No. 94-A / 2020, of 16 April, came to determine that, for the purpose of calculating the remuneration compensation, the “normal gross remuneration” consists of the remuneration benefits normally declared to Social Security and usually received by the basic remuneration, monthly premiums and regular monthly allowances.
However, according to the Instructions for Completing the Appendix to Mod. 3056/1-DGSS and the clarifications published by the General Directorate for Employment and Labor Relations (DGERT), the concept of “normal gross remuneration”, which was in 16 of April defined by Ordinance No. 94-A / 2020 is effectively limited to the amounts that are declared to social security, in the remuneration declaration, under the “P” code (base remuneration), the “B” code (premiums monthly) and the “M” code (regular monthly allowances). Since the remuneration increase for the provision of night work is declared to Social Security under the code "T", this may mean that this increase for night work will not be considered for the purposes of calculating the remuneration compensation.
Thus, unless the remuneration increase has been declared to Social Security as base remuneration, monthly premium or regular monthly allowance, in principle it will not be considered in the calculation of the remuneration compensation. If it is confirmed that the compensation in the present case (assuming that he is a worker in mainland Portugal) is not considered, it will be € 635,00, which is the minimum wage. In any case, if the increase for night work was considered, the compensation would be just € 15,00 more (2/3 of € 975,00 = € 650,00).

(reply from Marta Pinto da Silva, partner, and Marília Duarte, associate, Luiz Gomes & Associados)

 

I would like to know the deadline for asking to lay off. For example, can a company that is late and deliver the papers still deliver the lay off for April? Can a company that gets a big job get rid of the lay off? As? 

Bearing in mind that, under art. 4, no. 3 of DL 10-G / 2020, of 26 March, for the employer to benefit from the lay-off regime, prior notification of the respective decision to workers is necessary, after hearing union delegates and workers commissions, when they exist, and “immediately” send the application to Social Security services, the literal wording of the law seems to rule out the possibility of submitting a lay-off request that is more than a month past the effective date, as your question results from the tenor. However, Social Security has adopted a more comprehensive understanding, by granting several requests that were filed in April, with a start date dated March, so, although it is not certain (and even debatable), it is conceivable.

In any case, the employer must be in a “business crisis” situation on the intended start date of the extraordinary support, as provided for in art. 3 of the aforementioned legal regime (either due to the total or partial closure of the company / establishment, a break of at least 40% of the billing in the 30 days prior to the start date compared to the average of the two months prior to that period, or total stoppage or partial activity resulting from the interruption of supply chains or the suspension of orders) (i), and the effective start date must be after the written communication date to the workers covered by this measure (ii) .

As for the second question, according to art. 4, no. 3 of DL nº 10 G / 2020 of 26/3, the measures that integrate the lay-off regime (suspension of the employment contract and reduction of the period of work), has the duration of one month, exceptionally extendable monthly up to a maximum of 3 months. Although it is not foreseen the possibility, in the course of such period, to put an end to it, we understand that from the moment the cause that determined the suspension of employment contracts or the reduction of the normal period of work ceases, the The employer may summon the worker (s) covered by these measures, either to resume their work or to recover all the hours of work that had been reduced, respectively. In this case, in addition to the respective communication to workers, you will have to communicate such update to Social Security, so as not to unduly receive a higher than due contribution.

(response from labor law lawyer Miguel Granger Rodrigues)

Can a company that is on lay off replace employees, that is, what is at home to be called to work and what was working to go home on lay off?

The measures relating to the lay-off regime (either by suspending employment contracts or by reducing working time) do not have to cover all workers in the same company, and may include only a certain group of workers, insofar as they are necessary for the maintenance of the respective remaining activity. This support lasts for one month, although it can exceptionally be extended up to 3 months, as provided in art. 4th, no. 3 of DL 10G-2020 of 26 March.
However, it does not seem to us that the lay-off regime rules out the possibility for the employer to interpose the suspension periods between workers, ie, suspend the employment contracts of a group of workers for one month, and during the following month. , the rest, in order to guarantee some rotation among them and to ensure, at the limit, the principle of equal treatment among all workers. Such change in the workers covered must always and only cover workers affected by the reasons that determined the use of lay-off measures (there must be a causal link). if it chooses such change / replacement of workers, the employer must change the nominative list of workers covered initially delivered to the Social Segment, from month to month, when submitting the application for extension of the lay-off regime with the Seg Social, as well as communicating the respective changes to the workers involved: end or start of suspension of employment contracts.

(response from labor law lawyer Miguel Granger Rodrigues)

 

I am a technology commercial and I have been in lay-off in telework, since the 1st of May. My clients call me to request proposals, I have pending projects, I need to respond to clients! In this situation of simplified lay-off with suspension of the employment contract, can I continue to respond to my clients? Can I use my company email and mobile phone to continue my work? Is there any punishment for the worker if he works in a simplified lay-off? Can my employer demand to work in lay-off?

Being covered by the lay-off regime, the worker may find the employment contract suspended or with a reduction in the normal working period.

In the first case, the worker will not be able to provide work.

In the second case, the employer can only request work during the agreed reduced work period.

During the suspension period, only the duties and obligations resulting from the contract that are not directly related to the provision of activity are maintained. This means that the duties that presuppose the effective provision of work are suspended, which includes replying to emails, sending proposals, contacting clients.

In addition, the provision of work to the employer itself by a worker covered by the extraordinary support measure for the maintenance of an employment contract in the modality of suspension of the contract, or beyond the established schedule, in the modality of temporary reduction of the normal working period, implies a breach of the employer's obligations which, under the terms of the aforementioned Decree-Law no. 10-G / 2020, of 26 March, would lead to the immediate cessation of support and the refund or payment, total or proportional, of the amounts already received or exempted.

As such, in order to avoid negative consequences for the company, the work that may be requested by the company's customers from the employee, while the employee is suspended, will have to be forwarded to his superiors.

When the contract is suspended, the worker again has to fulfill his duties that presuppose the effective provision of work.

In any case, if the functions are compatible, in the context of the coronavirus pandemic, both the employer and the worker can opt for teleworking, without the need for agreement. Thus, by terminating the suspension of the contract, a teleworking regime may be adopted.

(replies from Eduarda Almeida Costa, Lawyer at RSN Advogados)

 

I have been working for three years in the IT sector, copies and customer service at a shopping center. When the State of Emergency was declared, the Shopping Center closed just like our store and we (the 4 employees) went into Lay-off. A week earlier, I was informed that on the 04th of May only I would go to work while my other colleagues would stay at lay-off. I was told that my schedule would be on Monday from 14 pm to 00:18 pm; from Tuesday to Friday from 30 am to 10:00 pm; on Saturday from 18 am to 30 pm and on Sunday I had time off. The Shopping Center remains closed. I was also informed that on departure I would be alone until the 10st of June. I said several times that I didn't agree, but it didn't help. I would like to know if this is legal and if there is anything I can do about it.

The measures relating to the lay-off regime, whatever the modality adopted, do not have to cover all workers in the same company, and may include only a certain group of workers.

Such management will have to be done taking into account the concrete needs of the company so that the maximum objective of the diploma is reached - the maintenance of the respective employment contracts.

However, the selection of workers must always be based on objective and non-discriminatory criteria. At the limit, the principle of equal treatment for all workers, provided for in the Labor Code, must always be taken care of.

In this case, note that the layoff measure was transversal to the entire organization. However, the worker saw her working hours reduced and the remaining employees her contract suspended. In this sense, it will be important to know the specific needs of the company to be ensured by the worker in question.

In the event that the choice is considered arbitrary, after duly inquiring the company's motivations, the worker may challenge the same.

The worker may also request the intervention of the Authority for the conditions of the Work whenever she believes she is the target of any discrimination.

(replies from Eduarda Almeida Costa, Lawyer at RSN Advogados)

 

The company where I work went into Lay-off, suspending my employment contract. I am a health professional and worked a few hours on green receipts to earn a little more money, not making up a third of my salary. Am I required to inform the employer of this amount?

During the period of suspension of the employment contract through the layoff, the worker may perform another activity, as long as it is not harmful / competitive to the company's activity, as the duty of loyalty continues to have to be observed.

If the activity is initiated after the employee enters the lay-off regime, the employee is obliged to report this fact to the employer within five days from the beginning of the activity, for the purpose of any reduction in the remuneration compensation.

This is because, during the lay-off period, the worker is only entitled to remunerative compensation to the extent necessary to, in conjunction with the remuneration for work done for the employer (when under a work reduction regime) or for another company, to ensure the monthly amount equivalent to 2/3 of your gross monthly remuneration.

Thus, if the worker does not fulfill this obligation, he loses the right to retributive compensation and is obliged to refund what he has received under this title.

However, this rule does not apply if that activity is carried out in the areas of social support, health, food production, logistics and distribution.

(replies from Eduarda Almeida Costa, Lawyer at RSN Advogados) 

 

If a worker is reducing working hours under the simplified lay-off regime, are they entitled to food allowance? If so, how much? In a scenario where the worker works 5 hours a day, is the total amount due or only 2/3 of the amount due? With the vacation worker enjoying the lay-off period, what is the amount of remuneration due? As for the amount of the allowance, I think there is no doubt that the worker receives the benefit in full. But what about retribution for those vacation days? Do you receive 100% or just 2/3?

The food allowance, as a rule, is due for each day of work actually performed. Thus, workers who are suspended from the employment contract are not entitled to a food allowance.

On the contrary, the worker who is in a regime of reduction of the normal working period will be entitled to the usual food allowance, except when the daily working period is less than 5 hours, in which case the respective value is calculated in proportion to the normal weekly working period.

As for the holiday enjoyment in the lay-off period, this does not affect the booking and holiday enjoyment, in general terms, with the worker entitled to payment by the employer of the holiday allowance due under normal working conditions.

Thus, in relation to the enjoyment of scheduled vacations, per worker covered by the reduction or suspension of the employment contract, the scheduling of vacations can be maintained, and the same can be taken, with the worker entitled to receive during the vacation period the value of retributive compensation plus vacation allowance, total or proportional, that would be due under normal working conditions, that is, without any reduction.

This does not prevent that, by agreement between the parties, the vacation booking can be changed.

Still, with regard to subsidies, the use of the simplified lay-off by companies does not affect the workers' right to receive holiday and Christmas subsidies, which are paid in full, which add to the amount of the compensation compensation.

The holiday pay is paid in full by the employer as if the worker were in normal working conditions.

The Christmas bonus is also paid in full, but is supported by Social Security in an amount corresponding to half of the compensation and by the employer in the remainder.

If the payment of such allowances is made in twelfths, the respective amounts do not include the compensation of the worker who is covered by the simplified lay-off regime. However, the employer is obliged to continue to make your payment.

(replies from Eduarda Almeida Costa, Lawyer at RSN Advogados)

 

I belong to the permanent staff of a company that entered Lay-Off on 17/03 and suffered the siege of Ovar. However, I am also an old-age pensioner (early retirement under long-term unemployment). I was consulting the Decree-Law that governs the Lay-Off and it clearly says that pensioners-workers have access to Social Security support. But to date, I have received nothing unlike my colleagues.

In addition to the cumulation between the compensation and the invalidity pension being expressly provided for, the truth is that it is primarily up to the employer to pay the same, later receiving the amount supported by Social Security. That said, not only are you entitled to receive, but the same receipt is not dependent on Social Security.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

On the 27th of April I went to sign the lay off for May, but I also signed the June one. I would like to know why I already signed the June one already. My boss says it's for prevention.

As envisaged, the simplified lay-off does not require acceptance by workers, but merely communication. Consequently, it is assumed that what you have signed is 'that knowledge', which could have been replaced by an email or a registered letter. For its part, the requirement to sign the June Report does not make any sense since the documents must be signed on the dates shown therein.

(reply from Rita Garcia Pereira, lawyer and master in labor law) 

 

We are a layoff company for reasons of suspension and cancellation of orders that led to an abrupt break in billing under the Simulated Layoff Law. Our work depends mainly on the resumption of the economy by the chain stores in the domestic and European market and, therefore, we wish to ask for the extension of the period of suspension of employment contracts, so our concrete question is whether we can do it do for all the workers, or if you have to be partial, having at least 1 worker working as I’ve read somewhere in the press.

The simplified lay-off extension regime approved by Decree Law No. 10 G / 2020 does not provide for such a limitation, and the extension may cover all workers who were the subject of the initial application.

(response from labor law lawyer Miguel Granger Rodrigues)

What is the amount to be paid to the lay-off employee? With the following maturity conditions: Basic maturity of € 1.100; allowances of € 550 and exemption Working hours of € 275?

As long as the extraordinary support for the maintenance of employment contracts remains in force, you are entitled to receive retributive compensation to the extent necessary to ensure the monthly amount of 2/3 of your gross remuneration, or the value of the minimum guaranteed monthly remuneration corresponding to the normal working period, depending on what is higher, up to a maximum of 3 minimum guaranteed national remunerations (€ 1.950,00), 70% supported by Social Security and 30% by this company.
Regarding the remuneration installments that enter into the calculation of the compensation, our law uses the concept of “normal gross remuneration”. Now, we are dealing with a more comprehensive concept than the concept of basic remuneration that is taken from Article 262 of the CT. Thus, normal remuneration is understood as base remuneration, seniority and all other regular and periodic installments inherent to the performance of work and which appear on the salary receipt, as will be the case, for example, for the shift allowance and exemption working hours. However, it will already be excluded, namely, food allowance, subsistence allowance, reimbursement of eventual expenses and extraordinary premiums.
Based on the assumption that your contract is suspended, the remuneration benefits to be taken into account for the purposes of calculating the remuneration compensation, will be related to your basic remuneration and the exemption from working hours. In this way, you will be entitled to receive the amount of € 916,67.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

My employer went into a simplified layoff on April 09th. Since that date I am doing 10 hours a week. In March, I had a reduction in workload (35 hours per week). I have a PPR, I wanted to know if I can make partial redemption of the PPR without tax penalty, for the month of March, April and in the future May and June. Or can I just do the month of April, since the state of emergency ended on the 2nd of May?

Under Law no. 7/2020, of 10 April, it was possible, in certain circumstances, to redeem Retirement Savings Plans without tax penalties, provided they were subscribed until March 31, 2020, and while the state of emergency was in force. Now, having the state of emergency ended on the 02nd of May 2020, although against the spirit of the law, by reading this it is no longer possible to access this measure.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

My question concerns whether or not to include sales premiums in the calculation of “normal income”.
Judging by the published FAQ, the Extraordinary Measure to Support the Maintenance of Employment Contracts (Layoff), in its point 6, covers so many cases of reduction or suspension. “Whether there is a reduction in the normal working period or suspension of the employment contract, workers are entitled to receive a minimum amount equal to two thirds of their gross salary (without discounts), or to the minimum wage corresponding to their normal period of work, whichever is higher ”. Analyzing Ordinance No. 94-A / 2020, of April 16 in its 4th Article, it reads: “In the scope of extraordinary support for the maintenance of the employment contract, the calculation of the remuneration compensation considers the remuneration benefits normally declared for the social security and usually received by the worker, relating to basic remuneration, monthly premiums and regular monthly allowances ”.
I ask for clarification on the issue, as it seems clear that Ordinance No. 94-A / 2020 of 16 April defines the rule, however, some employers and social security continue to maintain the non-inclusion of employees sales premiums.

The concept of “normal retribution”, as its name suggests and as Social Security itself has already clarified, is a more comprehensive concept than the concept of retribution that comes from art. 262 of the CT, encompassing the basic remuneration, seniority payments and all other regular and periodic payments that appear on the salary receipt. Therefore, in the concept of “normal remuneration”, all regular and periodic installments inherent to the provision of work. According to some of the published FAQs, and in line with paragraph 1 of article 4 of Ordinance No. 94-A / 2020 of 16 April, the “calculation of remuneration compensation considers the remuneration benefits normally declared for the social security and usually received by the worker, relating to: a) basic remuneration (code P *), b) monthly premiums (code B *), c) regular monthly allowances (code M *) ”. Thus, and as long as certain premiums are paid on a regular and periodic basis and constitute the remuneration that the worker usually receives, they will be included in the so-called “normal remuneration”. As for sales bonuses, we do not know their genesis and characteristics, namely if they are only intended to encourage workers to achieve certain objectives and whether they are paid regularly and periodically. However, fulfilling the above-mentioned assumptions, sales premiums must be included and, if Social Security determines their exclusion, it will be up to the employer to resort to court to enforce their right.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

I have been in a lay-off since 09/04, I am accompanying two daughters, one 9 years old in the 3rd year of basic education and the youngest, 4 years old. My question is about the reopening of the colleges from 1 June. Given that I will remain on lay-off and that the schools will remain closed, as is easy to understand, I will not take the youngest to the school. These months of confinement I continued to pay 35% of the tuition fee, which was what the school administration decided. My question is, as they are going to open on the 1st of June, will it be mandatory to pay the 100% monthly fee, without taking the girl and while I am in lay-off?

To date, there is no measure regarding the payment of tuition fees for schools / daycare centers in the private sector. However, and since educational establishments were forced to close, the obligation to pay tuition is discussed, when, in the majority, these institutions have continued and continue to demand such payment without the provision of a service. However, in the same way that, considering the circumstances and according to the specific case, there may be a reduction in the benefit or, even, the parents stop being obliged to pay this monthly fee, if the educational institution resumes its regular activity the monthly payment should also be paid in full.

(reply from Félix Bernardo, partner at Caldeira Pires - Sociedade de Advogados)

 

My company put me on lay-off with the suspension of my employment contract, having started the lay-off on 07/04 with a duration of one month until 07/05. Had you scheduled a vacation day, is it suspended or is it on lay-off like vacation taken?

The period of suspension of the lay-off employment contract cannot include vacation days as they assume that the contract is not suspended. The vacation days previously scheduled and which will coincide with the lay-off period must be rescheduled for a new date. However, in the specific case, assuming that the lay off started on April 07.04.2020, 06.05.2020, it should last until May 07.05.2020, XNUMX, in which case May XNUMX, XNUMX will not be covered by the lay off, being an effective working day and therefore, it can be considered as a vacation day.
A different issue will be that the worker scheduled this vacation before the outbreak and wanted to change it due to the pandemic, since it will not allow the effective enjoyment of the vacation, which seems defensible.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

I have been on lay-off with work suspension since the beginning of the month. However, for about 15 days I continued to respond to e-mails and to do some work, such as publications on social networks. Until I understood that being in lay-off with suspension I shouldn't be doing these jobs. I would like to get your help, since now and then I still receive emails that I am not responding to. Can I be penalized for that?

During the suspension period, duties that do not presuppose the effective provision of work are suspended, which includes replying to Emails and carrying out some work, such as publications on social networks.
As such, in order to prevent the provision of suspended work from causing negative consequences (particularly for the company), the emails received, particularly from outside the company, should be forwarded to the superior.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

I am assisting my daughter due to the closure of schools. My daughter has a chronic illness. Now my company went into partial lay off saying that I have to go to work every day for 2 hours. This is cool? How is my daughter's situation?

Within the scope of the lay-off, the company can determine the reduction of working time, namely to two hours of daily work. However, in cases of assistance to a minor child with a chronic illness, the worker may justifiably be absent and entitled to a subsidy paid by social security. For the purpose of justifying absences and granting the subsidy, the Declaration Mod. GF88-DGSS, available on the Social Security website, must be completed and sent to the company.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

I work part-time, part-time, work 28 hours a week and receive 500 euros. Since I am paid below the minimum wage, and I am currently on layoff, am I going to take a salary cut or do I receive the full wage? 

The minimum amount that the worker is entitled to receive under the Labor Code corresponds to 2/3 of the gross normal remuneration (by way of compensation) or the value of the minimum guaranteed monthly remuneration corresponding to the normal period of work, which is why this minimum amount fixed by correspondence to the normal working period.
In the case of a normal working period of 28 hours corresponding to a remuneration of € 500, the value of the minimum guaranteed monthly remuneration, proportional to that normal working period, is guaranteed and ensured. Thus, the suspension of the employment contract will determine the payment of a retributive compensation corresponding to 2/3 of the € 500, with a minimum of € 444,50 that cannot be harmed by corresponding to the minimum monthly remuneration corresponding to a normal period of work. 28 hours.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

My company mentioned that it was going to go into lay-off at the beginning of April, and that some of the employees would be on a 50% reduction in hours. I stayed at home the whole month by order of the company, by lay-off by suspension. On April 27, they “asked me” to go to the company to sign a document in which they agreed to receive only 2/3 of the salary, my salary being the minimum wage, because after all the company did not go into lay-off. Is the "request" made to me legal?

The unilateral reduction or suspension of the employment contract due to a business crisis or catastrophe situation can only occur through the use of the lay-off regime, which must be sustained and comply with legal procedures.
Nevertheless, the company can use the same mechanisms that result from the reduction or suspension of the employment contract by agreement with the worker, however, the reduction must be kept in proportion to the monthly remuneration.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

What is the term for the simplified lay-off? According to li, it lasts for one month and can be extended monthly up to a maximum of 3 months. I would like to know if the deadline ends in June or July, with the lay-off starting in early April?

The diploma that approved the so-called simplified lay-off (Decree-Law no. 10-G / 2020, of 26 March), provides that it lasts for one month, being, exceptionally, extendable monthly, up to a maximum of three months.
More predicts that it will take effect until June 30, 2020.
Thus, regardless of the date on which the initial order was placed (duration of one month), the simplified lay-off may be extended up to a maximum of 3 months, with the limit of 30 June 2020.
Without prejudice to the above, the diploma also provides that the measure may eventually be extended for another three months (that is, until September 30, 2020), depending on the evolution of Covid -19 economic and social consequences. However, this possible extension is, for now, unknown.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados) 

I am grateful for this opportunity, I am in lay-off and I already had vacations scheduled, of which fifteen days coincide with the lay-off regime, I ask if these vacations will be considered as taken or can I reschedule for a period after the lay-off?

The lay-off, whether in the “traditional” version provided for in the Labor Code, or in the so-called “simplified lay-off” (regardless of the regime of suspension or reduction of working hours), does not affect the booking and enjoyment of holidays , in general terms, the worker being entitled to payment by the employer of the vacation allowance due under normal working conditions.
Thus, in relation to the enjoyment of scheduled vacations, per worker covered by the reduction or suspension of the employment contract, the appointment of vacations can be maintained (given that, apparently, they were scheduled and approved), and they are taken, with the worker right to receive during the vacation period the amount of the compensation plus the vacation allowance, total or proportional, that would be due under normal working conditions, that is, without any reduction.
This does not prevent that, by agreement between the parties, the vacation booking can be changed.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

We are a restaurant company (cafe / bar) We ordered the layoff, for our company on April 1st. After the State of Emergency is over, the Government will have the restoration opened from 18 May. If I open the cafe, do I lose access to the layoff?

The answer to the question you ask is dependent on the concrete terms in which the application for granting support was made under the terms of Decree-Law no. 10-G / 2020, of 26 March. Admitting that the application was made on 1 April, in order for the measure to remain on 18 May, the lay-off extension request must already have been made (since the measure has a maximum duration of 30 days, which may be extended). In this case, and assuming that the request for extension has been made for an additional 30 days, if such request has been admitted by Social Security for that period, the lay-off will remain in effect until the term of the request for extension. In this context, the possibility of resuming activity without losing the support granted under the lay-off depends on the concrete situation of the workers covered by the measure. If the lay-off has been implemented with suspension of employment contracts, during the lay-off period workers will not be able to perform any type of work in favor of their employer, so in the event of a resumption of activity during such period with recourse to these workers, this would imply a breach of the employer's obligations which, under the terms of the aforementioned Decree-Law no. 10-G / 2020, of 26 March, would lead to the immediate cessation of support and the refund or payment , total or proportional, of the amounts already received or exempted. In the event that the lay-off was implemented using the possibility of reducing the normal working period, workers covered by this modality could provide work (provided that they do not exceed the normal working period indicated in the lay-off requirement).
We also emphasize that it is also important to take into account the concrete foundation that was the basis for the use of the lay-off media since, under the terms of the recent Decree-Law no. 20/2020, of 1 May, in cases of companies with establishments whose activities have been subject to a lifting restriction after the end of the state of emergency or a restriction imposed by legislative or administrative determination, pursuant to Decree-Law No. 10-A / 2020, or under Basic Law of Civil Protection, as well as the Basic Law of Health, continue, from that moment, to be able to access the simplified lay-off mechanism provided for in Decree-Law no. 10-G / 2020, as long as they resume the activity within 8 days.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

I would like to know if a company / store can fire in March and put the lay off in April?

The prohibition on dismissals provided for in Decree-Law no. 10-G / 2020, of 26 March, applies both during the period of application of the measure and in the 60 days after its expiry. Thus, if the termination of the dismissal procedure is concluded (and here we emphasize that the aforementioned Decree-Law only prohibits collective dismissals or for the extinction of the job, notwithstanding that, even during the aforementioned period, other forms of termination of contracts may occur) before the lay-off measure was applied, this will have no impact.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

My contract was for a fixed term renewable every 6 months and ended in mid-May. At the end of March I received a statement from the company saying that at least until the 6th of April the company would go into layoff and that I would be covered, so my contract would be suspended without being obliged to report to my post. job. However, on April 30, I received a new statement saying that the company was going to continue in layoff and in the meantime I received a call from human resources saying that my contract would not be renewed in May. Is this possible?

Even during the period of implementation of the lay-off, the company is not prevented from making the expiry of fixed-term contracts operate by checking the respective term. However, this does not mean that the company is not obliged to comply with the legally required requirements to make the employment contract expire at a fixed term. Thus, under the legal terms, in order to make such expiry operate, the employer will have to send you a written notice 15 days in advance of the date of termination of the contract. In this context, the mere call from human resources to inform you that the contract would not be renewed is not suitable for terminating the fixed-term employment contract, so if the company does not make such written communication within the indicated period, the contract will renew it will be automatically renewed for another 6 months (if such renewal is still possible in view of the maximum duration of fixed-term contracts) or it will become a permanent contract of employment if such renewal is no longer possible. If the company maintains its intention to terminate the employment contract in violation of the above rules, this will result in an unlawful dismissal, which can be challenged in court.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

 

On March 16, I signed the G88 Family Support Model for closing schools and sent it to the company's accounting with the dates from March 16 to March 27. On the 27th I contacted the employer to find out what our situation would be like. time that my boss would have to close doors due to the measures of the state of emergency. I was then informed that I would receive a statement by email that the company would suspend the contract and under the lay-off. On March 30, the employer sent the declaration by email, mentioning the suspension of my employment contract from March 22 to April 21. I informed and sent it to the accounting on March 30th.
On April 21, I will contact the employer again, as the declaration is on the last day and has not been informed of what would happen. They informed me that it was going to be renewed and the accounting would send by email the declaration to renew the lay-off.
On April 30, I receive a salary of € 312, I contacted the employer to ask for clarification since in my accounts and according to the lay-off information, if we received the minimum salary I would have to receive at least € 635, minus discounts. I was asked to contact the accounting department where they explained that I was on the measure of exceptional support to the family, and that, since I signed this document until March 27, I can no longer enter into another measure, I am obliged to always receive by model G88.
My question is, I haven't signed any G88 models since March 27th, and this is because the company just told me to sign such a lay-off statement. For me as soon as I am informed by the company that my contract is suspended, this measure prevails over family support.
I would like to be informed about my rights, and what is correct, because at this moment the accounting wants me to sign the G88 model that sent me on the 30th with the date of 14 until April 30, when I think I don't have to sign , because at this moment I was asked to start my functions on the 5th of May and if I have to sign a G88 model it will be from the 1st of May onwards because in my opinion it is from this date that I am no longer in lay off. Can the company renew the lay off for 15 days? Or is there a minimum?

The Model GF88-DGSS model is a declaration by the worker that is intended to be handed over to the employer to justify absences due to the closure of the educational establishment.
During the period of suspension of the contract under the layoff regime, the rights and duties of the parties that do not presuppose the effective provision of work are maintained.
From the moment the company communicated the suspension of the contract, any absence that should be justified, whether through a model declaration GF88-DGSS or other document or means, is no longer marked.
If the contract is suspended, there is no longer any absence from the worker in the workplace that needs justification.
The same does not apply to the measure to temporarily reduce normal working hours.
From the question asked, it is not clear what document the worker changed, put dates on and sent to accounting. Assuming that it referred to the Model GF88-DGSS, sending such a declaration is no longer necessary as soon as the contract is suspended.
The reduction or suspension of the contract has an initial duration of one month, which may be extended up to a maximum of three months, and should cease as soon as there is no longer any grounds for maintaining this measure.
When the contract is suspended, the worker again has to fulfill his duties that presuppose the effective provision of work, including justification of absences, if applicable.
During the lay off period, the worker is entitled to receive a compensation equal to two thirds of his normal gross remuneration, or the value of the guaranteed minimum monthly remuneration, whichever is higher, up to three times the guaranteed minimum monthly remuneration.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

I work in a café and it will only be able to work again on May 19th, right? Can my boss put me on lay-off only from 01/05/2020 to 18/05/2020? I've been in lay-off in the period from 01/04/2020 to 30/04/2020. I have vacations scheduled for 12/05/2020, so you can lay-off until 11/05/2020, enjoy the holidays and then go to work?

Regarding the opening date of the establishment, we do not have concrete data to answer the question. The type of establishment in question would have to be better achieved in order to be able to ascertain whether it falls under the closed facilities and establishments regime, the activity suspension regime or those that may reopen now.
Regarding the lay-off, it is a measure that lasts for one month, extendable up to a maximum of three months. The employer may, taking into account the elements transmitted, extend the lay-off until 18 May. With regard to holidays, the reduction or suspension of the contract in the context of a lay-off does not affect the booking and enjoyment of holidays, in general terms, which may occur during such period.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

 

The firm I work for went into a 50% lay-off and I will work every day for 4 hours. Am I entitled to full food allowance? My net salary is 770 euros, what will my monthly lay-off salary be?

It is covered by the Simplified Lay-Off regime in the form of reduction of the Normal Working Period. In your case by 50%. He did not provide us with the amount of his gross monthly remuneration - as the value of 700 euros, which he indicates, corresponds to net salary. However, in general terms, your Employer must pay the entire proportion of the gross salary corresponding to the hours worked by you (if you go from 40 hours to 20 hours, you will pay half) and still pay the 30% of the remaining amount, to ensure minimum values ​​(635,00 euros or 2/3 of the normal gross remuneration), with the remaining 70% of that remaining amount being paid by Social Security. Regarding the lunch allowance, since the situation of reduced working hours is equivalent to the legal regime provided for part-time workers, a proportionality judgment should be applied, with reference to 8 hours, as it is necessary to adapt. Making this reference to proportionality, taking into account that a worker who works 5 hours receives a full meal allowance, who works 4 will be entitled to 4/5, a situation that applies to their specific case.

(response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

Having a basic maturity of 745 euros, plus twelfths, what will be the amount receivable, being in lay-off (suspension)?

The remuneration compensation due to the worker under the Simplified Lay-Off regime - here in the form of suspension of employment contract - corresponding to two thirds of the normal gross remuneration, does not include the payment of subsidies in twelfths that have been agreed, which however, it does not exempt the Employer from continuing to make its payment. In the absence of an agreement regarding the entire Christmas Benefit, it will be borne by Social Security in an amount corresponding to half of the remuneration compensation, and by the Employer in the remainder. As for the remuneration compensation under the Simplified Lay-Off regime, you are entitled to support corresponding to two thirds of your normal gross remuneration, with a minimum of 635 euros and a maximum of 1.905 euros, 70% financed by Social Security and 30% paid by the employer. In your case, and in the absence of detailed information, everything indicates that 2/3 of your normal gross remuneration counts less than the minimum limit of 635,00 euros, which is why this will be the amount of the remuneration contribution you will receive under of this Simplified Lay-Off scheme, with 444,50 euros financed by Social Security, and 190,50 euros paid by its Employer.

(response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

 

I work in a multinational company with around 1.000 employees. They put us all on the lay-off regime due to the Covid-19 pandemic, each receiving their respective information by registered letter individually. I am a resident of the Autonomous Region of Madeira and the Government has allowed us to resume our commercial activity as of 04/05, unlike our colleagues from Mainland Portugal.
My question is this: Can we here in RAM, get out of the lay-off before our continental colleagues, since the company has requested this support for everyone equally?

The simplified Lay-Off regime includes a set of exceptional measures, provided for in Decree-Law No. 10-G / 2020, which aim to mitigate the consequences of the business crisis caused by the Covid-19 pandemic.
The Lay-Off regime is not necessarily transversal to all employment contracts, and can be applied, provided it is duly substantiated, only to certain workers or sectors whose suspension of employment contracts or reduction of their activity is necessary.
Thus, the choice of workers affected by this measure must obey objective and duly justified criteria.
Now, if the fundamentals that led the company to submit the Lay-Off request no longer exist in relation to certain workers, those workers can and should no longer be subject to this measure, nothing preventing the rest from maintaining this regime.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

I worked part time (40%), at night, before the lay-off (total suspension in my case). He earned a wage equivalent to the minimum wage in proportion (254 euros gross, subject to social security discounts) + a nightly subsidy of 58,62 euros gross (subject to social security discounts) + food allowance in the amount of 40 euros (without discount for social security) + transport allowance in the amount of 12 euros (without discount for social security). As no simulator can give me an answer, I would be very grateful if they indicated the amount to be received or how it is calculated in this case.

Pursuant to article 305 (1) (a) of the Labor Code, during the period of suspension of your employment contract, the worker is entitled to receive a minimum monthly amount equal to two thirds of his normal gross remuneration .
The concept of normal gross remuneration is different from the concept of basic remuneration, including certain components that it does not include.
It has been understood that the concept of normal gross remuneration should include, in addition to the basic remuneration, the regular monthly premiums and subsidies earned by the worker.
However, meal and travel or transportation allowances are excluded from this concept.
Therefore, in order to calculate your gross monthly remuneration, you must account, in addition to your salary, for night work allowance (€ 312,62).
You will therefore be entitled to receive a compensation equivalent to 2/3 of this amount (€ 208,41).
It happens, however, that this amount is less than the amount of the minimum guaranteed monthly remuneration corresponding to your normal working period and, in this case, it will be € 254,00, therefore, this is the amount that you should receive during the term of the contract. Lay-Off and that corresponds to what it already earned before being subject to this measure.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

I work in a company that went into lay-off and put some workers in the first month to work 2 days a week. Others are at home in suspension lay-off. Now for the second month they joined the same regime, but again for some workers. Except that instead of staying two days, the workers covered will have to work another day, that is, 3 days. Will these workers not have to receive more than the same 2/3 of the salary? And shouldn't we be entitled to a food subsidy?

In the event of a reduction in his normal working period, the worker has the right to receive a monthly minimum amount calculated in proportion to the hours of work he will start to provide, resulting in a 16-hour employee's remuneration being different from that of another worker. work 24 hours a week.
However, because the value of the remuneration cannot be less than two thirds of the normal gross remuneration or the value of the minimum guaranteed monthly remuneration corresponding to the normal period of work, whichever is higher, it may happen that the amount to be paid to two workers who provide separate weekly working hours coincide.
This could happen if the amount that would be due to one of them has increased because it is below the minimum values ​​mentioned above, setting an amount corresponding to what is paid to another worker who provides more hours of work per week.
The food allowance aims to compensate the worker for the expense of the meal that he will have to take during his working day.
Since this is not a mandatory benefit, it is only due when it is provided for in the individual employment contract or in a collective employment contract.
This being the case, if there is a reduction in the normal period of work, the worker will be entitled to the amount provided for in the collective regulation instrument (if any) or to that practiced in the company, except if, through the reduction, the period normal daily work is less than 5 hours. In this case, the meal allowance must be calculated proportionally with reference to the amount paid to the worker in the respective normal weekly working period.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

My company went into lay-off on April 1st for 3 months. Some of us stayed to work full time and 80% of my colleagues went home. Do I have to work for 3 months without employee turnover?

The measures relating to the lay-off regime (either by suspending employment contracts or by reducing working time) do not have to cover all workers in the same company, and may include only a certain group of workers, insofar as they are necessary for the maintenance of the respective employment contracts. This support lasts for one month, although it can exceptionally be extended up to 3 months, as provided in art. 4th, no. 3 of DL 10G-2020 of 26 March. Thus, in practice, the same worker, or group of workers, can see the respective contract (s), through any possible extensions, suspended for 3 consecutive months.
However, it does not seem to us that the lay-off regime does away with the possibility that the employer in some way distributes or prorates throughout the lay-off period, the periods of suspension among workers, ie, suspending workers for one month. labor contracts of a group of workers, and during the following month, the rest, in order to guarantee some rotation and ensure, at the limit, the principle of equal treatment among all workers (article 24, number 1 of the CT), always and as long as such alteration is in keeping with the reasons that determined the company's use and maintenance of lay-off measures. If you choose to do so, the employer must change the nominative list of workers covered by those measures, which can be changed from month to month, when submitting the application for the extension of the lay-off regime with Social Security , as well as communicate to the workers involved the respective changes: end or start of the suspension of employment contracts.

(response from labor law lawyer Miguel Granger Rodrigues)

 

I was in April in lay-off but I worked 5 days. Am I entitled to the payment for those days as well as the food allowance?

You are entitled to receive the entire salary, paid by your employer, corresponding to the 5 days you worked, as well as the food allowance for each of those working days. On the contrary, under art. 6th of 10-G / 2020, of 26/03 and art. 305 of the CT, during the period of application of the lay-off regime, you are entitled to retributive compensation equivalent to 2/3 of your normal gross remuneration (with a minimum limit of € 635 and a maximum of € 1.905), including in this case the food allowance, in accordance with the provisions of article 260, no. 1 and no. 2 of the Labor Code.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Can I legally do the 25% teleworking job? Or do I necessarily have to pinpoint the point for those 10 hours a week to be recorded?

According to the Resolution of the Council of Ministers no. 33-A / 2020 that declared the calamity situation “It is mandatory to adopt the teleworking regime, regardless of the employment relationship, whenever the functions in question allow it”.
This regime is applied regardless of the working hours agreed between the parties, be it a rigid, flexible or other modality, and includes the provision of part-time work. The duties of attendance and punctuality are maintained under normal terms and according to the agreed schedule, under penalty of a foul. The registration of working time remains mandatory, even when working outside the company, and the employer must ensure that the worker records the time immediately after returning to the company, or sends it duly stamped, so that the company has access to it. registration duly stipulated within 15 days of the installment. The control of attendance and punctuality can be done, for example, by means of an electronic record.

(reply from Maria Lourenço, Labor Law lawyer at MP Associados - Sociedade de Advogados)

My employer resorted to the layoff regime in April, as I was the service coordinator, the coordination allowance was not reflected in the salary receipt. My question is, if it is paid monthly, is it possible to withdraw this portion and / or this remuneration in the layoff? 

Under the legal regime that created the so-called simplified layoff, workers are entitled to receive compensation equal to two thirds of their normal gross remuneration, or the value of the guaranteed minimum monthly remuneration, whichever is higher, up to triple minimum guaranteed monthly fee.
Under the terms of Ordinance 94-A / 2020, of April 16, “the calculation of the remuneration compensation considers the remuneration benefits normally declared for social security and usually received by the worker, relating to the basic remuneration, monthly premiums and regular monthly allowances ”.
As the coordination allowance is paid monthly, as mentioned, it will have to be considered in the calculation of the compensation, not being paid in an autonomous heading.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

My company changed my layoff regime, from full layoff, to partial layoff starting next Monday, and lasting until the end of May. Since the reduction in the PNT [Normal Working Period] is only 2 hours / week, that is, 4 hours a week, what is the remuneration that I should expect in the month of May, admitting for the purposes of calculation a gross monthly salary of 36 € ? Is it legal for a company to reduce working hours by 1.200% and wages by 10/1 (3%)?

In a business crisis situation, it is up to the employer to decide whether to temporarily reduce normal working hours or to suspend contracts. The decision on the reduction in the number of hours corresponding to the normal working period is also up to the employer.

During the reduction period, each worker is entitled to the respective salary, calculated in proportion to the hours worked (in this case, a salary proportional to 36 hours of work per week).
Since it is a reduction of only 10% of the PNT [Normal Period of Work], the amount of the salary paid in proportion to the hours of work will naturally and necessarily exceed the minimum amount corresponding to two thirds of your normal remuneration illiquid, so it will not be necessary for the company to pay any compensation that, together with the remuneration for work performed, ensures the minimum monthly amount legally due (the 2/3 of the normal gross remuneration).
In short, the remuneration must be paid in proportion to the time worked, which in this case corresponds to 90% of the remuneration by comparison with the PNT prior to the layoff.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

The company where I work went into lay-off in March, the 20th, delivering a letter stating that it would be until the 20th of April. I worked until March 15th. Does the company have to pay for the 15 days + 3 work that I stayed at home because the company was closed, or does it already count as a lay-off? If it does not count, will the employer have to pay only those working days or the entire March?

In relation to the month of March, the payment of retributive compensation due in case of layoff will only contemplate the final part of the month, in this case from the 20th to the 31st of March. Until the 19th, if there is no cause attributable to the worker that justifies and legitimizes a reduction of the remuneration (for example: absences), the employer is responsible for paying the remuneration normally due in proportion to that period (from 1 to 19 March). Both the remuneration normally due until March 19, and the remuneration compensation due for the layoff period are paid by the employer and reflected in the respective salary receipt.

(reply from Maria Lourenço, Labor Law lawyer at Magalhães Pereira Associados - Sociedade de Advogados)

 

My husband was away until April 10. The employer sent a letter to warn of the simplified layoff, which came into force from 1 to 30 April. From what I read on the Social Security page, in the “normal” layoff the layoff prevails (so whoever was on sick leave now receives only layoff), but this layoff is different, isn't it? And can the entity call the worker back to work from one day to the next? And this layoff is also only renewable for a maximum of 3 months, correct?

The simplified lay off also prevails over the situation of medical discharge, so that whoever cumulates both situations will start to receive the compensation due by the first.
The employer can call the worker at the end of the lay-off or, during his pending period, if the underlying conditions change. For this purpose, he must notify the worker and Social Security.
If the covered Worker is in a low situation, he will receive again through this route.
For the time being, the maximum term for the simplified lay off is three months, but it is not out of the question that the said period should be increased, always assuming the respective requirements are verified.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

At the moment, I am in full lay-off. If I want to submit a contract termination, am I still obliged to comply with the minimum working days provided by law, which in this case are 60 days, since I have been working with an open-ended contract for over 2 years?

Yes. The employment contract is either totally or partially suspended, depending on the type of lay off applied. However, despite the aforementioned suspension, the remaining rights and duties inherent to the contractual relationship, including notice.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

My company has been in Lay-off since April 1st. I work at night from 22 pm to 06 am. From Monday to Friday, five nights. I would like to know how much I will have to earn? As I earn 25% more than the normal salary of those who work during the day, my value is the same or whoever does the night earns more? 

The question is unclear to the extent that the company may have resorted to the lay-off regime to suspend some employment contracts and / or reduce the normal working hours of some workers, and of others not. The worker can only suffer a reduction in his salary if the respective employment contract is suspended or if he has suffered a reduction in his normal working period. If the length of the normal working period is maintained, monthly remuneration must also be maintained. If, on the contrary, your employment contract is suspended from this 1st of April, you are entitled to retributive compensation for the period of time it lasts, corresponding to 2/3 of your normal gross pay, but which can never have a value less than € 635,00 or greater € 1905,00, by applying the provisions of paragraph 1 a) of paragraph 3 and in paragraph 305 of article 10 and CT DL nº 2020-G / 4. Included in the so-called “normal remuneration”, in accordance with the provisions of article 94 of Ordinance 2020-A / 16, of April XNUMX, are the “remuneration benefits normally declared for social security and usually received by the worker”, so we understand that the remuneration benefits corresponding to work performed at night are also included, when paid monthly and regularly by the employer. However, in practical terms, given the aforementioned limits for the payment of retributive compensation, you may earn the same as your colleagues who work during the day.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Did you ask how to calculate the lay-off that starts in the middle of the month?

Workers covered by the simplified lay-off regime are entitled to receive the amount corresponding to 2/3 of their normal gross remuneration, or the value of the guaranteed minimum monthly remuneration - RMMG (€ 635,00) corresponding to their normal period of work and a maximum of three RMMG (€ 1.905,00), whichever is higher (regardless of whether the normal working period is reduced or the employment contract is suspended).

When the lay-off begins in the middle of the month, the employer is responsible for paying the full amount of the workers' compensation until the day on which the lay-off takes effect and the lay-off rules (with a limit of an RMMG and the maximum limit of 3 RMMG) apply only from the moment the lay-off started.

In practical terms this means that workers who went into lay-off in the middle of the month will be entitled to compensation of 2/3 of their normal gross remuneration (with the limits mentioned) in relation to the lay-off period, with the the amount they receive for the month the lay-off starts - which corresponds to only part of the lay-off's effective period - may be higher than these limits.

(reply from Catarina Bahia, associate at Abreu Advogados)

 

My daughter's school will go into layoff. Are you obliged to inform your parents that you went into layoff?

The law establishes the obligation of companies wishing to use the simplified lay-off regime to communicate this decision in writing to their employees, indicating the expected duration before submitting the lay-off request via direct social security. This obligation to communicate is not extended to parents or guardians of children who attend school.

Thus, communication by the school to parents / guardians should be limited to the temporary rules of operation of the school (example: distance learning) and eventually to the reduction of part of the tuition in the case of private establishments.

(reply from Catarina Bahia, associate at Abreu Advogados)

 

Social Security understood that if a worker entered the lay-off regime on March 20, he will have no support in that month because he has already earned 2/3 of his salary. But I read that the Minister of Labor has already taken a position on how to calculate the lay-off if it starts in the middle of the month. How do you calculate the lay-off that starts in the middle of the month?

Correct, according to positions not officially confirmed, apparently, social security understood that, for the purposes of granting support, the amounts paid by the company would be taken into account even if outside the lay off period, which could mean that, if if the company had already paid the worker a total of 66% of his remuneration, there would be no more support. This means that if the process were launched around the 20th, the company would lose the right to support.
However, the Minister of Labor seems to have clarified that such an understanding would be incorrect.
In fact, the amounts of support must be taken as a reference to the date of the start of the lay-off process, regardless of whether it starts at the beginning, in the middle or at the end of the month. Despite the fact that the law establishes that the worker is entitled to remunerative compensation to the extent necessary to, together with the remuneration earned in the company or outside, ensure 2/3 of his monthly remuneration or the amount proportional to the working time, up to € 1.905, such amounts and limits refer, under the terms of the law, to the period during which the reduction or suspension of working time is in force. However, if the lay off process is initiated in the middle or at the end of the month, such limits and amounts cannot be applied to the portion of the month in which the regime was not in force.
Thus, if the worker does not have reduced or suspended working hours for part of the month, all the rules and limits contained in article 305 of the Labor Code cannot be applied. Otherwise, it would be harming and violating the worker's remuneration, as he would see his remuneration reduced (in proportion to the time he worked full-time).
The support corresponding to the lay off that starts in the middle of the month should therefore be calculated proportionally to the time of the same.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

I have young children attending “school at home” due to the closure of schools. I have been in lay-off, but when I am called back to work can I submit the special family support form that was in force in March? If not, what alternatives do I have to be able to stay at home taking care of my children since there is no school reopening?
Yes, the regime in force in March can be used, which aims to provide support in the period not included in the academic breaks, when the worker has to miss work due to unavoidable assistance to a child or other dependent under 12 years of age. resulting from the suspension of classroom and non-classroom teaching activities.
This support has a minimum limit of 1 Minimum Monthly Guaranteed Remuneration (RMMG) in the amount of € 635 and a maximum limit of 3 RMMG in the amount of € 1.905 and is calculated according to the number of days absent from work.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

The company where I work went into lay-off on March 31 for a period of 1 month. But I was warned that I would return to work on the 20th, before the month-long layoff period. I would like to know if it is possible to go to work and go back to lay-off again?

The law does not specifically provide for the way in which the company can or should communicate the eventual termination of the lay-off before the end of the period initially stipulated. As a precaution, all communications within the scope of the lay-off must be written, so that there is unequivocal proof of them.
On the other hand, the duration of the lay off must be communicated by the employer to the worker and respected so that he can organize his personal and professional life (possibly outside the company) according to that communication.
Finally, under the traditional lay-off regime, the Labor Code prevents the employer from resorting again to the application of the reduction or suspension measures before a period equivalent to half the period previously used has elapsed. This rule may be understood to apply to the simplified lay-off, although it was not specifically provided for.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

Can employee contracts that are in a simplified lay-off expire?

The law only prohibits the termination of employment contracts under collective dismissal or extinction of a job, excluding dismissals due to a fact attributable to the worker, in relation to any company worker who has resorted to simplified lay-off processes during the period of employment. 60 days after the lay-off process.
Thus, there is nothing to prevent the company covered by the lay-off process from terminating a fixed-term employment contract at the end of the respective term, within the scope of the trial period or even by agreement.
However, the use of the lay off process also aims at maintaining jobs and the viability of the company, so if the lapse involves a worker covered by the lay off, it seems to us to be inconsistent to use the lay off with the consequent expiry of the employment contract, which social security may also question and thereby cancel support. Even so, this cannot influence the support related to the other supports, but only that of this specific worker.

(answer Inês Albuquerque e Castro and Bruno Ferreira Domingues, from FCB Advogados)

 

My company went into lay-off on April 1st, and as far as I know the salary will be paid 70% by social security and 30% by the employer, and I earn the minimum salary. I would like to know if the twelfths enter these accounts, and if the employer is obliged to give the 30% at the same time as social security?

Workers covered by the simplified lay-off regime are entitled to receive the amount corresponding to 2/3 of their normal gross remuneration, or the value of the guaranteed minimum monthly remuneration (€ 635,00) corresponding to their normal period of work, depending on whichever is higher (regardless of whether the normal working period is reduced or the employment contract is suspended).
Thus, earning the worker concerned from the national minimum wage, this is the amount of the compensation payable to him during the period of validity of the simplified lay-off.
On the other hand, the use of simplified lay-off by companies does not affect the workers' right to receive holiday and Christmas subsidies, which are paid in full, which add to the amount of the compensation.
The holiday allowance is paid in full by the employer as if the worker were in normal working conditions, while the Christmas allowance (also paid in full) is supported by Social Security in an amount corresponding to half of the compensation and the employer in the rest.
If it has been agreed with the worker to pay such allowances in twelfths - as seems to be the case - the respective values ​​do not include the compensation of the worker who is covered by the simplified lay-off regime, which does not exempt, however, the employer to continue to make your payment.
During the application of the measure, the company is entitled to financial support for the purpose of paying the retributive compensation, which corresponds to 70% of the amount corresponding to that compensation, which will be provided by Social Security.
Notwithstanding this financial support, the payment of remuneration and compensation is fully guaranteed by the company, which will then be reimbursed by Social Security.
Thus, the employer must ensure the payment of the compensation in full before the social security services reimburse the part of the corresponding support.

(reply from Catarina Bahia, associate at Abreu Advogados)

My company joined the simplified lay-off on the 15th of March. However, they continue to request work on a daily basis, alleging point 5 of Article 5 of Ordinance No. 71-A / 2020. My question is, if the lay-off regime is in effect at my company until May 15th, am I obliged to continue working or can I refuse to do so? Bearing in mind that I do not receive my salary in full, but said 2/3 I would like to know whether or not you are doing it correctly.

The first version of Ordinance No. 71-A / 2020 of 15 March stipulated in paragraph 5 of article 5 that the employer benefiting from the simplified lay-off measure could instruct the worker to exercise, on a temporary basis, non- included in the employment contract, provided that this does not imply a substantial change in the worker's position, and that it is oriented towards the company's viability.
It happens that Ordinance No. 76-B / 2020 of 18 March, which entered into force on 19 March, revoked this possibility.
Without prejudice, we understand that the functional versatility provided for in article 120 of the Labor Code remains in force.
As the simplified lay-off is in force, the worker may find himself in one of the following situations: i) with the employment contract suspended - in this case he will not be able to provide work, ii) with a reduction in the normal working period - in which case the employer he will only be able to request the provision of work during the agreed reduced work period, or iii) he is not covered by the simplified lay-off measure, in which case the worker must perform his work in the usual terms.

(reply from Catarina Bahia, associate at Abreu Advogados)

I am a mother who stayed at home to assist her children due to the closure of schools, but in the meantime the company where I work went into lay-off on the 6th of April and will remain so until the 6th of May. It was communicated to me by the company that had entered lay-off and for that same reason the assistance to children would be canceled. After finishing the lay-off, what do I have to do? Fill out the form again, to ask for assistance from children due to the closure of schools? 

The measure of exceptional support to the family for employees during the period of closure of schools is not cumulative with the measure referring to the simplified lay-off regime, so that the worker in question cannot benefit from both measures simultaneously.
If after the end of the simplified lay-off regime and any renewals, the school establishments are still closed, the worker may apply again to the social security services for this exceptional support to the family, and must fill out a new form for this purpose, the which will be granted as long as the worker complies with all the eligibility requirements of the measure.

(reply from Catarina Bahia, associate at Abreu Advogados)

My company put me on lay-off. If I am called to work, can I request extraordinary support for the closure of schools since I have a young daughter and my wife is working?

The measure of exceptional support to the family for employees during the period of closure of schools is not cumulative with the measure referring to the simplified lay-off regime, so that the worker in question cannot benefit from both measures simultaneously.
On the other hand, the suspension of the worker's contract of employment covered by the simplified lay-off regime presupposes that the worker is effectively out of work.
In order for the worker with a suspended employment contract to be legitimately called to work, it is necessary that the employee's employment contract is no longer suspended (the lay-off may be lifted, or, alternatively, the normal working period may be reduced) , after expressly communicating the intended change to social security.
Thus, only the validity of the simplified lay-off period will the worker be able to request extraordinary support to assist the 7-year-old daughter.

(reply from Catarina Bahia, associate at Abreu Advogados)

 

I'm breastfeeding and my company went into lay-off. As she had a full 2-hour layoff for full time, in practice she worked 6 hours / day. When they went into lay-off, they placed me with a working hour of 6h / day (mentioning that this way I would still be 100% in the company and would therefore receive my 100% salary). Since I only work 6 hours a day, does the breastfeeding schedule continue? Won't I have cuts in salary?

If we understand correctly, your employer has reduced your normal working hours by 25%, that is, from 8 to 6 hours a day.

As for the breastfeeding period, the fact that your employer has resorted to the lay-off regime does not preclude your right to enjoy breastfeeding leave. Thus, as provided in article 47 of the Labor Code, the duration of the dismissal will be reduced in proportion to the respective normal working period, which will, in practice, correspond to 1 hours (-25%). The daily allowance must be taken in the first one hour period, and in a second with the remaining duration, unless another regime is agreed with your employer.

By reducing your normal working hours, you may see your monthly salary reduced by the same proportion. However, under art. 6th of 10-G / 2020, of 26/03 and art. 305 of the CT, your remuneration can never be lower than the minimum amount equal to 2/3 of your normal gross remuneration, with the minimum limit being the national minimum wage (€ 635,00), and the maximum limit being triple the minimum guaranteed remuneration ( € 1.905,00). Unless you save the minimum wage (which you keep) or your employer pays you the remainder, you will suffer, through the reduction of the normal working period, a cut in your salary. For example, if you earn € 635,00, you are entitled to remuneration in proportion to your normal working period, € 476,25 - which is less than the national minimum wage. The remaining amount (€ 158,75), as retributive compensation, and in order to ensure those limits, 70% will be reimbursed by Social Security (€ 111,45) and 30% paid by the employer (€ 47,3).

(response from labor law lawyer Miguel Granger Rodrigues)

 

I ask you to inform me of the following: When the company is on lay-off, can employees be called to work and how many hours can they do?

The so-called lay off regime (simplified and recently approved by the Government through DL nº 10 G / 2020 of 26/3) comprises two types of measures: the suspension of the employment contract and the reduction of the normal working period.
In the first case, the worker temporarily stops working, in the second case the number of hours of work is reduced, and in both cases he is always entitled to compensation for the duration of the period, which is co-financed by the state in question. 70% of its value. Both of these measures are based on economic-social, and legal-legal assumptions, the situation of business and economic crisis resulting from the pandemic outbreak generated by Covide 19 (aka coronavirus). Basically, and in practical terms, the impossibility of employers to be able to maintain the same level of activity or occupation, and therefore employability (useful or effective).
According to art. 4, paragraph 3. of the aforementioned legal regime, any one of those measures lasts for one month, exceptionally extendable monthly up to a maximum of three months. It does not provide, nor does it regulate that Dec. Law, the possibility of, in the middle of the current period, putting an end to the measure (either of suspension of the contract, or of reduction of the normal period of work), and the letter of the law points for fixed (initial and extension) durations of one month. However, it is our opinion (albeit debatable), that taking into account that it is an exceptional measure of altering the normal course and execution of the employment contract, and on top of that, using the State's contribution and inherent financial effort , that nothing will prevent the employer, having in the meantime more in need of work, and useful and effective occupation for its workers in the middle of the process - it is understood in the middle of the validity of the measure to which it resorted -, to convene the (s) ) worker (s) to resume their work again; Either by ending the suspension of the contract, or by recovering all, or part of the hours to which the respective normal working period had been reduced. In these cases, always by communicating the fact to the Social Segment so that there is an update of the situation with it. In particular to avoid that he continues to receive the financial contribution higher than due (to the exact extent that it is no longer justified).
In such cases, the hours, or working hours, that the workers are obliged to provide will be the result of what is communicated to them by the employer with respect to what is provided for in the employment contract, being certain that they will never be able to provide an accumulated total of hours higher those that correspond to your normal working period, as a rule and on average, 8 hours a day / 40 hours a week.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Unfortunately, the company where I work was forced to redefine its strategy, mission and values, will imply a reduction in personnel. Can employee contracts expire that are in a simplified lay-off?

From the legal-legal point of view, the lapse of the employment contract corresponds to its termination by one of these 3 situations: expiration of the fixed-term contract (aka, fixed-term contract), worker retirement, or absolute and definitive supervening impossibility of the worker provide their work or the employer receives it (Article 343 of the CT).
During the period in which your employer applies the lay off, as well as in the following 60 days, you are only prevented from terminating the employment contracts of any of the workers covered, through the collective dismissal procedure or the extinction of the job (art. 13 of DL nº 10-G / 2020 of 26/3), so any termination of the employment contract that results from the use of one of these mechanisms is prohibited and illegal.

Thus, if it is a situation of termination of the employment contract for one of those 3 reasons referred to in article 343 of the CT (expiry), this is possible, whenever and when, the period of application of the lay-off measure by the company to the worker covered by it has already ended, or the worker ceases to be included in it in advance. It is not possible for a worker to be notified to Social Security as a lay-off object and simultaneously have his employment contract expired. If what you refer to as the “expiry” of the employment contract corresponds, in practice, to a procedure for the extinction of the job, or to a collective dismissal, the employer cannot do it.

(response from labor law lawyer Miguel Granger Rodrigues)

 

I am considered to be an EOM [members of the statutory bodies] of a single-person micro company for having assumed the role of manager and having been appointed in the minutes for such position. The sole partner of the company has no role or intervention in the management acts, being only the partner. The company does not have any other employee besides me.
For reasons of the emergency plan, and working in the area of ​​events (weddings), we have all jobs canceled / to be canceled. For this reason, we entered into a simplified lay-off on the 21st of March. I request help to help me clarify whether I can make the request for support currently foreseen for managing partners of companies without employees and with invoicing up to € 60.000, as I did not receive any support from the lay-off.

The question shows that the manager is the only worker in the sole proprietorship and is not a partner. However, the measure applicable to members of statutory bodies (MOE) only applies to partners who are cumulatively managers - which is not the case, who do not have self-employed workers and who still comply with billing requirements of less than 60.000,00 euros in the previous year, communicated through the e-invoice and which had an abrupt drop of at least 40% of their invoicing in the 30 days prior to the request.
Therefore, in this situation, not meeting these requirements, the partner will only be entitled to exemption from contributions to Social Security on behalf of the worker / manager who will be in lay-off, at the same time that he will receive financial support for the payment of 2/3 the basic remuneration of the manager / worker, with a minimum limit of 635,00 euros and a maximum of 1.905,00 euros.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

The company where I work will reduce staff. Can the employer terminate employee contracts that are in a simplified lay-off?

The simplified lay-off regime refers only to the impossibility of dismissals for economic reasons or extinction of the job. The expiry of an employment contract does not fall within those categories.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

I am in Lay-off, but at any time I can be called back to work. Having 2 children attending “school at home” due to the closure of schools, when I am asked to return to work can I submit the special family support form that was made available in March? If not, what alternatives do I have to be able to stay at home taking care of my children since there is no school reopening?

You will be entitled to exceptional support corresponding to 2/3 of your basic remuneration, with a minimum limit of 635,00 euros and a maximum of 1905,00 euros and is calculated according to the number of days you are justifiably absent from work, not applicable in the period of school holidays. Support is required monthly. For this you will have to fill in the GF88 Model and deliver it to your Employer.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

The company where I work went into lay-off on March 31 for a period of 1 month. On the 17th of April I was told that I would return to work on the 20th. So I did. On the 21st I returned to stay at home due to lack of material to work and on the 22nd in the morning I received the message from my superior saying that as I had not been notified, via letter or email, the lay-off survey could not go to work. I have tried with the company to understand my current situation but so far nothing has been said to me. I would like to know if it is possible to go to work 1 day and go back to lay-off again?

The current situation generates, at times, some disturbance in the organization of companies. Unaware of what actually happened, it will always be said that the lay-off request specifically indicates each worker and the period in which the contract is suspended. After the deadline, he must actually report to work, if he was immediately reappointed for lay-off, it seems that one day it will be little for this renovation, but we do not know how the procedure was planned. There are few elements

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

My company has 2 salespeople who both receive the minimum wage, plus commissions that exist every month and which they discount for social security. Taking a real example, we have employee 1 with a base salary of € 635 to which are added commissions on the amounts received by the company (average of the last 12 months) of € 4500 per month. What will the worker actually receive on his salary receipt, with the company in lay-off? My question concerns the question of who pays the remainder of the amount above € 1.905? Is it paid or not? Is the company obliged to pay?

In order for a concrete answer to be possible, there would have to be coordination between the accountant and the company's lawyer to ascertain exactly the monthly amount due to the worker. The question, too, does not refer to whether the lay-off was total, or whether there was a partial reduction in the time of providing the work, or even whether the commercials, during the lay-off time, are contacting customers and / or receive commissions because of your past and current sales. However, assuming that the company is in full lay-off, the maximum amount of remuneration due is, in fact, € 1.905,00, which will have to be paid by the company to the worker. Social security will later transfer to the company the amount corresponding to 2/3 of that amount.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

 

I would like you to help me clarify a doubt, my mother-in-law works in an association, the company sent her home in lay-off and at the end of a week they said that they cannot do lay-off and want to force her to take a vacation or taking leave because only those who stay in the association overnight for 7 days can go to work. Is all this allowed?

In principle, no. As a rule, holidays are marked by mutual agreement, in the absence of agreement, in principle the will of the employer will prevail.
The employer cannot compel the worker to “take leave” without an illness or accident at work, which attests to the employee's inability to do his job, under penalty of the worker practicing what is called “fraudulent leave.”

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I am a mother who stayed at home to assist her children due to the closure of schools, but in the meantime, the company where I work went into lay off on the 6th of April and will remain so until the 6th of May. It was communicated to me by the company, which had entered lay off and for that same reason the assistance to children would be canceled.
After finishing the lay off, what do I have to do? Fill out the form again, to ask for assistance from children due to the closure of schools?

The answer is yes. However, exceptional support to the family must be carried out through your employer, who must confirm that there is no possibility to provide your work in any other way, namely, telework.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I have two jobs. One during the day and the other after-work at night. My company went into a simplified lay-off. I also have to communicate to the company about my other post-employment work (since it is not during the company's actual hours?). Or will I only have to communicate if this work is carried out within normal company hours?

The question does not clarify whether the two jobs already existed before the legislation on the simplified lay-off was passed. Assuming that they already exist, there is an obligation to communicate whatever the time, regardless of whether the “original company” is in layoff.
This communication is important because if you do not do this, you may be subject to disciplinary proceedings, for violation of your duties as a worker. It may even trigger disputes with Social Security, because of its contributory situation.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

My daughter's school I knew was going to go into layoff. Is she obliged to inform her parents that she went into layoff?

Within the scope of the measures adopted and which regulate the simplified layoff regime, there is no obligation for schools to report entry into layoff to parents.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

I would like to know if I am in Lay-off, during this period time counts for the purpose of later attribution of unemployment benefit.

The period corresponding to the layoff is considered for the purpose of allocating unemployment benefits. In certain situations, it is possible for the worker to use unemployment benefits during the layoff period.

(reply from Francisco Aventino Pinheiro, Lawyer at Aventino & Associados)

 

How do you calculate the lay-off that starts in the middle of the month?

The remuneration should be divided by 30 and paid normally for the days worked, and should apply to the rules of the lay-off from the beginning of the effective period.

(reply from Rita Garcia Pereira, lawyer and master in labor law)


I am in a 30% lay-off and I have 3 children under the age of 12, can I request assistance from the children after the Easter holidays? Who pays the salary? If teleworking is possible in my role, can I also activate childcare? In May, can the company force me to take vacation days?

Yes, the fact that you are benefiting from the exceptional and temporary job protection measure under Decree-Law no. 10-G / 2020, of 26 March (commonly called simplified lay off), is not impediment to request the exceptional support to the family for employees as provided for in DL 10-A / 2020 of 13 March.

However, it will no longer be covered by one regime and move to the other, the two supports not being cumulative.

Exceptional support to the family for employees is not applicable when there are other ways of providing the activity, namely by teleworking. Exceptional family support for employees is paid by Social Security and the worker is entitled to receive 2/3 of his basic remuneration, that is, it does not include other components of the remuneration.

According to art. 241 of the Labor Code, the vacation period is marked by agreement between employer and worker. In the absence of an agreement, and without prejudice to special regimes, such as those provided for in the IRCT, for tourism and spouses working at the same employer, the employer can schedule holidays between 1 May and 31 October.
However, this forecast does not take into account the existence of a State of Emergency, which prevents the worker from having a physical and psychological recovery, enjoying conditions of personal availability, integration into family life and social and cultural participation during holidays. , as provided for in art. 237, no. 4 of the Labor Code, so we consider that the imposition of vacation enjoyment in this period can be considered abusive.

(reply from Sílvia S. Cristovão, lawyer at the Labor Law Department of Pares | Advogados)

 

The company where I work went into lay-off since April 13th. Up to that date we have been telecommuting. We were told that we would only receive the due date, for the month of April, in the middle of the month of May as that is when the first month of the lay-off ends. Since we work until the day before the company goes into lay-off, is it possible to only pay us the remuneration for the month of April at that time?

No. In both situations that you describe (teleworking and lay off), the duty to pay promptly at the end of the month the remuneration or compensation due to the worker remains and is the Employer's obligation.

(reply from Sílvia S. Cristovão, lawyer at the Labor Law Department of Pares | Advogados)

 

I am the owner of a company that went entirely into lay-off. I expect a resumption of activity and, to that end, I wish to hire workers whose fixed-term contracts expire at the end of May. If I do, do I lose the Social Security support provided for in Decree-Law 10G / 2020 of 26 March?

According to the lay off regime provided for in art. 298 et seq. Of the Labor Code, it is expressly forbidden the admission or renewal of an employment contract to fill a job that could be guaranteed by a worker in a situation of reduction or suspension.

Although it comes close to such a regime, the exceptional and temporary measure for the protection of jobs under Decree-Law no. 10-G / 2020, of 26 March (commonly called simplified lay off) has a specific objective and which is about supporting employers to maintain existing jobs at the start of the business crisis.

Therefore, the answer will have to depend on the reasoning of the fixed-term employment contracts in question, as well as whether they occupy a job likely to be filled by any of the workers already employed. It is an offense to keep unpaid (permanent) workers on lay-offs and to renew fixed-term employment contracts for workers to fill a job that could be filled by those first.

(reply from Sílvia S. Cristovão, lawyer at the Labor Law Department of Pares | Advogados)

 

The company where I work went into a simplified lay-off on the 1st of April and is sending letters to employees informing them of their vacation within this period and until mid-May. Can the company impose holidays during this period?

According to art. 241 of the Labor Code, the vacation period is marked by agreement between employer and worker. In the absence of an agreement, and without prejudice to special regimes such as tourism or the regime provided for in the Collective Labor Agreement and the employment of spouses in the same company, the employer can schedule holidays between 1 May and 31 October.

Art. 306, paragraph 3 of the Labor Code allows the booking and enjoyment of vacations in general terms during the lay off period.

However, this forecast does not take into account the existence of a State of Emergency, which prevents the worker from having a physical and psychological recovery, enjoying conditions of personal availability, integration into family life and social and cultural participation during holidays. , as provided for in art. 237, no. 4 of the Labor Code, so we consider that the imposition of vacation enjoyment in this period can be considered abusive.

(reply from Maria Carolina Guerreiro, lawyer in the Labor Law Department of the pair | Advogados)

 

I work in a pet supply store and we remain open to the public because we are considered to be a very basic necessity. My company went into partial lay-off on April 19 and my question is about the breastfeeding schedule during this lay-off period: how does it work and if the hours are counted and paid?

There are no special measures for accounting for breastfeeding hours during lay-off periods. However, assuming that the lay off modality practiced is the reduction of the normal working period, the breastfeeding exemption regime should be compared to the more similar regime that is provided for part-time workers, according to art. 47, paragraphs 5 and 6 of the Labor Code. Thus, the hours of breastfeeding exemption (two periods, maximum of one hour each) must be reduced in proportion to the daily working time actually provided, and cannot be less than 30 minutes. In this case, the daily allowance is taken in a period not exceeding one hour and, if necessary, in a second period with the remaining duration, unless another regime is agreed with the employer.
This question must also be assessed according to the working hours practiced.

(reply from Maria Carolina Guerreiro, lawyer in the Labor Law Department of the pair | Advogados)


I worked 4 years in a company where I made my legal discounts and on my salary as a seller all the commissions earned by me for my work are declared. In February I changed companies and with this situation of Covid 19 the company went into lay off. I would like to know if I will receive the average commission for the last 12 months or if, as I have heard and read, they will not be paid by Social Security?

Assuming that he is an employee, the remuneration to be considered for the purposes of the lay off is the remuneration earned in the company in which he is located and not the average remuneration earned in recent months. In addition, commissions do not fall under the concept of “normal remuneration” for the purpose of calculating the installment receivable during the lay off, so they are not considered for calculating the amount you will have to receive.

(reply from Maria Carolina Guerreiro, lawyer in the Labor Law Department of the pair | Advogados)

 

I read that the Government will charge TSU to companies that pay more than the lay-off amount? It is true?

Under the terms of article 305 of the Labor Code, the only limitation that exists is that Social Security support is limited to 70% of the maximum value of three minimum wages (1.905 euros). In other words, Social Security will insure a maximum of 1.333,5 euros of salary. Regarding the employer, there is no maximum limit, so you can pay the remainder ”. In the part that exceeds the maximum limit of the law, the company will have to pay Single Social Tax. "Companies that decide to choose to pay the differential that is above the maximum amount stipulated will not be entitled to a contributory exemption in this installment". In other words, the payment of TSU is due to the difference between 1905,00 euros and what will be paid by the employer.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

My company put me on lay-off with suspension of the employment contract, and at any time it can be shortened totally or partially. If I am called to work, I can request extraordinary support for the closure of schools since I have a 7 year old daughter and my wife is working.

Within the scope of exceptional support to the family resulting from the suspension of classroom activities, for employees, the absences of workers who have to miss work to provide assistance to children or dependents up to 12 years of age, or, regardless of age , with disability or chronic illness, due to the suspension of classroom activities will be considered justified absences, as long as the absences do not coincide with school holidays and if it is not possible to resort to teleworking. The worker who can access exceptional support to the family, corresponding to 66% of the basic remuneration, paid in equal parts by Social Security (33%) and by the employer (33%).

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

Is a company that goes into lay-off obliged to clarify workers about the criteria for choosing people for lay-off by suspension? Will the choice have to be made according to the salary? That is, for salary ranges? In the lay-off due to reduced working hours, will the cuts have to be proportional in the structure from the top to the bottom? Is the employer not obliged to disclose the percentage of cuts it has applied from bottom to top? Are there any limitations to what a company's management can receive in lay-offs?

The company is not obliged to clarify the selection criteria for each worker, as there are no selection criteria. There is also no requirement for direct proportionality between the position in the hierarchy and the reduction. The allegation according to which the lay-off was determined will have to be invoked and, if applicable, an inspection action, demonstrated before ACT and / or Social Security. In other words, ACT and Social Security have the inspecting competence to analyze the lay-off procedures, and the reasoning given for this purpose must be consistent and stick, for example, to the reduction to the exact means necessary to the continuation of the activity. However, it is limited by the constitutional principles in force and cannot use discriminatory criteria or the violation of the principle of equality.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I work in a hotel and I am entitled to a remuneration supplement called "allowance for failures" of cash. I ask if this allowance for cash failures goes into lay-off accounts? 

Does not enter. The allowance for failures (cash) is a benefit that is only paid as long as the effective provision of work is verified. This allowance, under the terms of art. 260º nº 1 a. al) and no. 2 of the Labor Code, it is not considered remuneration but has a compensatory character for an increased risk.
To that extent, the allowance for failures will, as a rule, be excluded from the concept of normal gross remuneration for the purposes of lay-off, since we are not facing a regular and periodic payment paid in return for the provision of work.
Ordinance 94A / 2020 of April 16, in art. 4th paragraph 1, however, came to clarify that: “the calculation of the remuneration compensation considers the remuneration benefits normally declared for social security and usually received by the worker, related to the basic remuneration, monthly premiums and regular monthly allowances” (our underline). That is, the remuneration codes P, B and M.

(reply from Fátima Valadas Godinho, lawyer, partner of CPA - Carneiro Pacheco e Associados)


The food allowance, according to my CCT, is in kind, however, in addition to receiving in kind, I also receive a residual pecuniary amount that I receive in the months of work, it is part of the normal liquid remuneration for the purposes of lay-off ?

It's not part of it. For the purposes of lay-off and as with the allowance for failures, the food allowance, as a rule, is not part of the concept of normal gross remuneration. This allowance does not have a retributive character but merely compensates for expenses with the main meal on the days of effective work. Therefore, the answer will be the same as the previous one and, as a rule, the food subsidy (in cash or in kind) will not be considered as part of the remuneration.

(reply from Fátima Valadas Godinho, lawyer, partner of CPA - Carneiro Pacheco e Associados)


I wonder if the hours of night work are part of normal pay?

If you receive it regularly, it will be part of your normal remuneration, insofar as it will be a consideration for the specific way of carrying out the work, paid regularly and periodically.
The concept of “normal gross remuneration” should include “basic remuneration, seniority and regular and periodic benefits inherent to the provision of work”, for example, benefits corresponding to shift allowances, night work, exemption from working hours.

(reply from Fátima Valadas Godinho, lawyer, partner of CPA - Carneiro Pacheco e Associados)

 

Is the holiday schedule affected by the lay-off?

In general terms of the Lay off provided for in art. 306º nº 2 of the Labor Code, “the reduction or suspension does not prejudice the booking and enjoyment of holidays, in general terms, the worker being entitled to payment by the employer of the holiday allowance due under normal working conditions”.
DGERT came to clarify on its website with questions regarding the simplified lay off that “… regarding the enjoyment of scheduled vacations, per worker covered by the reduction or suspension of the employment contract, if there is an agreement between employer and worker, it can remain vacation scheduling, and they are taken, the worker being entitled to receive during the vacation period the amount of the compensation plus the vacation allowance, total or proportional, that would be due under normal working conditions, that is, without any reduction".

(reply from Fátima Valadas Godinho, lawyer, partner of CPA - Carneiro Pacheco e Associados)

 

Regarding the salary received in lay-off, I would like to know if the IRS rate applied is calculated under 100% of the eligible amount or already at 66,6%?

The IRS rate to be applied will be only on the amount of the compensation, that is, on the 2/3 of the gross normal remuneration and not on the 100% of the remuneration.
In fact, we believe that Social Security goes in the same direction, when in FAQ's on its website it answers question 23: “The values ​​of the remuneration compensation are considered as income from work and are subject to withholding tax, under the terms of the Current IRS. ”

(reply from Fátima Valadas Godinho, lawyer, partner of CPA - Carneiro Pacheco e Associados)

 

My company has been closed since March 19 due to the contingency plan of the covid-19. They have not yet put the firm into lay-off and do not intend to do so, but they do not have the money to pay me. What can I do to get paid? Is there any social security support in place?

A: In case of temporary or permanent closure, the Employer continues to have the duty to make the payment of your remuneration on time. You will be entitled to receive 75% of the remuneration, in case the termination occurred due to force majeure. But if it occurred due to a fact attributable to your Employer or for reasons of interest to you, you will retain the right to the entire remuneration. The occasional failure to pay the remuneration is a just cause for the employee to terminate the contract, assuming that the failure to pay is culpable when the employer does not pay the remuneration for 60 consecutive days. In case of non-payment of punctual remuneration for a period of 15 days on the due date, you may suspend the employment contract, by giving written notice to your Employer and ACT, at least eight days before the date suspension. If it is still possible in your specific case, I recommend that you suspend your contract based on overdue wages, in order to have access to the Unemployment Benefit. Then, after 60 days without any payment of the missing remuneration on the part of your Employer, you must terminate the contract on the grounds of just cause, using the competent judicial mechanisms in order to see your rights guaranteed.

(response by lawyer Catarina d 'Orey of C'O Advocacia e Serviços Jurídicos)

 

As a hotel worker, does the cash allowance go into lay off accounts? The CCT (AHP and FESAHT) says that the cash bonus is paid while performing the cash function and that not performing, because it is in lay off, it is not part of the normal remuneration (during the holidays it is not received, it is only paid 11x). Does it go into the calculation of gross gross remuneration?

Art. 260 of the Labor Code establishes which benefits are included or excluded from remuneration. In its paragraph 2, it expressly mentions the bonus for failures or, commonly called the cash bonus, excluding it from the concept of retribution, with the necessary adaptations. In other words, "if this is intended to compensate for the increased risk that applies to workers involved in commercial transactions paid, in particular, in cash and, as it is not a consideration for the performance of the work," then it should not be accounted for purposes of calculation of normal illiquid remuneration, in a lay off situation.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 

 

According to the same Collective Employment Contract, the Food allowance is in kind, however, in addition to receiving in kind, I also receive a residual monetary amount. When you're on vacation, you don't get paid. Is this part of the normal retribution?

Assuming that, when referring to normal remuneration, it is also for the purpose of calculating retributive compensation, in a lay off process, the reasoning will be that of the previous answer. And no, the food subsidy cannot be counted either.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados)

 

Is night work, which includes hours that are only received if done, part of normal remuneration?

Yes. Because it is considered that the normal and gross remuneration includes all regular and periodic installments, inherent to the performance of the work and included in the salary receipt.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 

 

With regard to holidays scheduled during the layoff period, for example, my holidays are scheduled from April 20 to May 2. Lay off communication is from 1 to 30 April. The vacation days of April 20-30, will be taken at another time, right?

As long as the employer and worker are in agreement, the vacation schedule can be maintained, and they can be taken in the period already agreed. If there is no agreement, they will be taken at another time, and it is certain that employers have 10 days after the end of the state of emergency to fix workers' holidays.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 


Regarding the salary received in lay-off, I would like to know if the IRS rate applied is calculated under 100% of the eligible amount or already at 66,6%? For example, on a gross salary of € 2.000, is the IRS rate calculated under this amount, or under 66,6% of that amount (€ 1.332)?

The IRS rate to be applied will be on the total income, actually received by the worker, that is, on the 66,6%.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 


I currently have two jobs, both in the tourism sector, the sector that is probably most affected right now and in the long term. I have been in lay-off with one of the companies since April 1st. My question is: can I be on lay-off in two companies? If not, is there a solution? Because if I can't, I will have a drop of more than 50% in my monthly income.

The decision to apply for the lay off depends on the employer, so there is nothing to prevent both employers from requiring it and the worker to be covered by that decision.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 

 

Can a lay-off company bill what it produced before it went into lay-off?

Legally any invoice has to be issued, in the five working days, after the provision of the service or, sale of the good or product. Therefore, there is no impediment to billing what you produced before applying for the lay off. However, keep in mind the fundamentals of your lay off request.

(reply from Fátima Remelgado, Lawyer and Founding Partner of RSN Advogados) 

 

Can a company in full layoff (of course not cover managers), still invoice the stock produced before the layoff?

A company that has entered into a total lay-off regime, as such comprising the one that subjected the regime of suspension of the employment contract and, or, of reducing the normal working period to all the respective workers, is not legally prevented from issuing and send billing in respect of charging the price due for products or services already produced or provided.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Payments for exceptional Social Security support will be paid to companies in what way? How long does the company have to preserve the information that proves the facts on which the layoff request is based?

Payments of the social contribution of the Social Segment in support, namely in the amount of the compensation payable to the worker, are made by direct bank transfer to the employer's account.
All information and documentation supporting the facts on which it is based must be kept for a period of 3 years from the end of the request for benefit of the support measure.

(response from labor law lawyer Miguel Granger Rodrigues)


In the simplified lay off, when the hourly reduction does not entitle the company to receive any support as compensation, since the reduction amount is greater than 2/3 of the salary, it is entitled to the benefit of the temporary exemption from payment of TSU in charge of the employer (article 11 of DL nº 10-G / 2020)? Is this exemption only for workers covered by the lay-off or for all employees of the company?

1 - The so-called lay-off regime approved by DL nº 10-G / 2020, in terms of financial support to companies (and in addition to the extraordinary training plan) basically consists of 3 measures: financial support for the payment of contributory compensation (i), the extraordinary financial incentive to support the normalization (resumption) of the company's activity (ii), and the temporary exemption from payment of contributions to Social Segment (iii). These support measures are granted and recognized jointly and automatically, as soon as the company so requests and is considered to be in a situation of business crisis according to any of the taxing situations provided for in article 3 of the aforementioned Dec. Law. In the event that the company cannot benefit from the lay off regime, we understand that it cannot also benefit from TSU's temporary payment exemption measure.
2 - The TSU payment exemption is only that which is the responsibility of the employer and in relation to the workers covered by the lay off measure, and not the others that are not the object of it.

(response from labor law lawyer Miguel Granger Rodrigues)

 

The company where I work went into lay off on March 23, 2020, however asked us to change 10 days of our vacations already scheduled and approved for the lay off period, that is, to be paid at 66% and not to 100%. Don't vacations have to be paid for 100%? If you already had vacations scheduled during the lay off would these have to be paid at 66% or 100%? As I did not accept the company's proposal to change the holidays and I only have them scheduled for June, the company informed me that I was going to change the holidays for May (we will still be on lay off), is this allowed?

In a company that has entered the simplified lay-off regime, the employee maintains the right to take holidays and to receive the entire holiday allowance, since the right of the worker to take holidays and receive the holiday allowance, if 1 .January.2020 for having worked in 2019, so you are entitled to 100% paid holidays. According to article 306 of the Labor Code “1 - The reduction or suspension time does not affect the salary and the duration of the vacation period. 2 - The reduction or suspension does not affect the booking and enjoyment of holidays, in general terms, with the worker entitled to payment by the employer of the holiday allowance due under normal working conditions. 3 - The worker is entitled to a full Christmas benefit, which is paid by social security in an amount corresponding to half of the compensation and by the employer in the remainder. 4 - The violation of the provisions of paragraphs 1, 2 or 3 constitutes a serious infraction, this in the part concerning the employer. ”

The booking of vacations must be done by agreement, as they were already approved, they must be maintained.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

I have a question, my company activated the lay-off on the 1st of April and so I start to receive two thirds of the gross salary for what I saw in the information. I am a hotel receptionist and I have extra subsidies such as language awards, cash funds, and every month as night or shift work I receive the night work subsidy which varies depending on the nights worked, I would like to know if possible how they calculate the gross salary in this situation, and in this case who is responsible for this calculation, whether the company, or whether social security does the calculation with what is discounted monthly.

Pursuant to the legislation that defined the lay-off regime, the worker is entitled to receive 2/3 of the gross normal remuneration as referred to, with the minimum limit of one national minimum wage and the maximum limit of three national minimum wages . The remuneration will only be less than a national minimum wage, if your contract is part-time. The amount you will receive will be paid in the proportion of 30% by the Employing Entity and 70% by the Social Security that will deliver the support directly to your Employing Entity. The benefits referred to in terms of language knowledge premium and allowance for cash failures are normally included in Collective Employment Contracts for each sector, so it is necessary to ascertain which regime is subsumable to them. In any case, to calculate the gross amount of your salary, you take into account the basic salary, regular and periodic benefits and subsidies that the worker receives, namely those that are declared, in the period prior to the lay off, with Security. Social under the terms of article 258, no. 2 of the Labor Code. Or better saying, liable to integrate the concept of retribution, for the purposes of calculating the retribution for holidays and holiday and Christmas allowances, the payment of which occurs every month of activity in the year (eleven months). For calculation purposes, it is the Employer that communicates to the Social Security, which will later check whether it is correct or not.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

I intend to implement the lay-off in my company because of the business crisis situation - reduced billing, but with several modalities in different departments (100% work, suspension of employment contract or reduction of hours). As the company remains in operation and will be dependent on the order flow, I need to safeguard some agility in this process. Can the company place weekly lay-off orders, with changes in employees and lay-off modalities? How is the change processed? Will it be possible to place a lay-off order from 16/04 to 22/04 and a new order from 23/04 to 29/04?

The lay off modalities, as mentioned, (or extraordinary support measures) are, among others, the reduction of working hours and the suspension of employment contracts, and the same company may also be cumulatively employed to perform functions at 100%. %. For each request made with the Social Security, you will have to indicate the workers who will integrate the modality you choose most suitable for your company. Under the terms of no. 3 of article 4 of Decree-Law no. 10-G / 2020 of 26 March: “The measures provided for in paragraphs a) and d) of no. 1 have the duration of one month, being, exceptionally, extendable monthly, up to a maximum of three months ”.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

I have a doubt. In the simplified lay-off, when the hourly reduction implies that the company will not receive any amount as compensation, since the reduction amount is more than 2/3 of the salary, it is entitled to the benefit of the temporary exemption from payment TSU in charge of the employer (article 11 of DL nº 10-G / 2020)? Is this exemption only for workers covered by the lay-off or for all employees of the company?

The exemption regime is only applicable to workers who have been covered by extraordinary support measures.

(response from Raquel Caniço, Lawyer at Caniço Advogados)

 

My company did not go into lay-off and my employment contract ends in May, the question I ask is being at home with a child under 4 years old due to the closing of schools can you fire me? Even after I handed the papers over to my company because I was supporting my son, since I don't have anyone else?

The lay-off procedure does not prevent the term employment contracts from being the subject of termination, that is, not renewed, so this may happen. Even so, you should consult a lawyer, since, if your employment contract is poorly justified as to the term, it may be considered effective from the beginning of the relationship and, if so, your dismissal would be illegal.

(reply from Rita Garcia Pereira, lawyer and master in labor law)


My husband is at home due to the siege of ovar and I am also at home due to the fact that schools are closed. I filled out the form to accompany my 10 year old son. Am I entitled to this support or do I have to go to work?

Only one of the members of the household will be entitled to the referred support, so the other will be in the situation of justified absences but not returned.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

If the mother is at home in support of the child under the age of 12 due to school closure and the father is in partial lay-off due to the reduction in the Normal Working Period and it is not possible to telework for any, what will they receive?

In the case of cumulation of both, however, the lay-off regime for payment purposes prevails. In addition, for the purpose of calculating what you will receive as a lay-off, you should consult the Social Security simulator.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

What happens to a salary that has an ongoing attachment? Do you suspend during the lay-off?

The pledge is not suspended with the lay off, and the foreseeable non-enforceability regime must be respected, that is, 2/3 of the income or the national minimum wage. The amount pledged should therefore be appropriate to the amounts actually received during this period.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

If the company initially put the worker on lay-off with suspension of the contract but, after 12 days, he called him to work and informed him that he was going to be reduced to the Normal Working Period, what will the salary be like? How is this communication made to Social Security and the worker? Is it in writing?

The company is responsible for making the written communication to the Social Security, being, in the first line and before the Worker, responsible for the payment. The amount you will receive will correspond to the 12 days of lay off in the form of total suspension of the provision of work and the remainder taking into account the type of total reduction.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

If one parent is in a partial layoff regime (80%), and therefore has to go to the workplace every day, can the other spouse choose / benefit from family leave (having children under 12)? 

If there is a partial lay-off regime, which presupposes the obligation to appear at the company, nothing seems to prevent the other spouse from requesting a follow-up license, since the expected incompatibility is based on the assumption that there is a lay-off in the total suspension of activity. However, I would like to emphasize that the Government has announced successive interpretations, later put into practice by Social Security, which do not find full correspondence with the legal text. In the case of cumulation of both, however, the lay-off regime for payment purposes prevails. In addition, for the purposes of calculating what you will receive in the form of lay-off, you should consult the Social Security simulator.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I have doubts about filling out the form to obtain extraordinary support, in the table that asks for start date and end date.
 
Assuming that you are referring to Model RC 3056 - DGSS (Business Crisis Situation Requirement), field 2.2. it refers to the number of workers covered by the lay-off in the modality of reduction of the normal period of work, and there must be indicated (i) the number of workers covered by the measure and (ii) the start and end dates for its implementation. In the case of the so-called “simplified lay-off”, the start date to be included must coincide with the date on which the lay-off came into effect in the company, and between the start and end dates they should not mediate more thirty days (even if the company plans to implement a simplified lay-off measure for a longer period, the request for support will have to be the subject of extension requests whose duration, on the whole, cannot exceed three months).

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

Is there a deadline for the delivery of this form, and what is the term for it?

Under the terms of Decree-Law no. 10-G / 2020, of 26 March, if the company intends to implement the “simplified lay-off” measure, it must inform the workers in writing of this decision and immediately send the application. to Social Security.

There are no defined deadlines for the company to start the simplified lay-off process, all depending on the dates on which the legal requirements for access to the measure are fulfilled (namely the break of at least 40% of the invoicing, if this is the case). the basis) and the date on which, according to its management decision, the company decides to implement the measure.

We emphasize, however, in this regard that, according to the information provided by the Government (which deserves some reservations), applications are allowed to access the measure with retroactive effects in some cases. Thus, if the basis for the implementation of the measure consists of the closure decreed by the Government or by legislative or administrative determination, in the case of such a result of the regime provided for in Decree no. 2-A / 2020, of 20 March, the support is liable to be awarded since March 22, 2020, provided that it has effectively ended on that date. In cases of closure motivated by the Basic Law for Civil Protection or the Basic Law on Health, it can be attributed since March 16 when it concerns any activity of dental medicine, stomatology and dentistry, or since March 17 , if resulting from the declaration of a calamity situation in the municipality of Ovar, provided that it has effectively closed on those dates.

Finally, we emphasize that the regime provided for in Decree-Law no. 10-G / 2020 will only be in force until June 30, 2020, with the possibility of extending it for another three months due to the evolution of the consequences economic and social aspects of COVID-19.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

Finally, I would like to know, in case a worker receives the minimum wage € 635, what percentage the social security pays the worker with the remainder being paid by the company, and what percentage the company charges social security being paid until the 20th of each month (May).

In any of the modalities applicable to the situation of business crisis, that is, either in the case of a reduction in normal working periods or in the case of suspension of employment contracts, the employee will be entitled to 2/3 of his normal gross remuneration, with a minimum corresponding to € 635,00. For the avoidance of doubts, we emphasize that the total amount that the worker will receive during the lay-off period is paid in full by the company to the worker, and the support in charge of Social Security is later delivered to the company.

Without prejudice to the above, the amount to be borne by the employer and Social Security depends on the concrete situation of the worker. Thus, in the event of suspension of the employment contract of a worker who earns the minimum wage of € 635,00, he will continue to receive the same amount, with 30% (€ 190,50) being directly borne by the employer and 70 % (€ 444,50) will correspond to Social Security support. In the case of a reduction in the normal working period, the part corresponding to the work actually provided will be fully borne by the employer and only 70% of the remaining part - until it reaches € 635,00 - will be supported by Social Security. In a practical example of a worker who earns a monthly salary of € 635, with a normal working period of 40 hours per week and who, due to the implementation of the lay-off, sees his normal working period reduced to 20 hours per week, will pass to receive € 317,50 for the work actually provided, to which will be added a retributive compensation in the amount of € 317,50, with respect to the latter, 30% (€ 92,25) will be borne by the employer and 70% (€ 222,25 , XNUMX) for Social Security.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

Who is entitled to the lay-off regime? A contributor to green receipts without organized accounting, does not earn any salary and starts the activity 01/05/2019?

Self-employed workers (with green receipts) do not fit the measure of the simplified lay-off. However, the Government approved the extraordinary support measure to reduce the economic activity of self-employed workers. Since April, this measure has been applied to self-employed workers who, in the last 12 months, have had a contributory obligation for at least 3 consecutive months or 6 interpolated for at least 12 months and who are in a proven stoppage of their activity or activity. activity of the respective sector as a result of the outbreak of COVID or for which there is a drop of at least 40% of the billing in the period of 30 days prior to the request (the billing break being measured by comparison with the monthly average of the previous two months at the request or with the same period of the previous year or, even, with the average of the whole period in activity for those who started activity less than 12 months ago.

The measure consists of a financial support of a value ranging from € 438,81 to € 635,00, depending on the remuneration values ​​recorded as a contributory base. This support lasts for one month and can be extended up to a maximum of 6 months.

In the specific case, and since, according to the question, the taxpayer does not earn any income, he will not have had a contributory obligation in 3 consecutive months or 6 interpolated for at least 12 months, so he will not be entitled to access the measure.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

Is a taxpayer with organized accounting, sole proprietorship, with remuneration (minimum wage) and starting on 01/05/2019, entitled to layoff? Since this taxpayer is both self-employed and a partner in a sole proprietorship. In both cases, there are no workers at your service.

Here, too, the lay-off regime is not applicable. However, just as it did for the self-employed, the Government approved a measure of extraordinary support to the Members of Statutory Bodies (“MOE”). This regime is applicable to the managing partners of companies (and also the EOM of foundations, associations or cooperatives with equivalent functions), who do not have employees at their service, who are covered by social security systems exclusively as a EOM and with invoice communicated in the e-invoice in 2019 below € 60.000,00. The financial support has a value ranging from € 438,81 to € 635,00, depending on the remuneration values ​​recorded as a contributory base. This support lasts for one month and can be extended up to a maximum of 6 months.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

I have a housekeeper whose salary is paid by the hour. Is she entitled to the lay-off? If so, will it have to be for all your employers or could it be just for me? How do you calculate what she will receive?

The simplified lay-off regime is not applicable to domestic service workers. In relation to these, the Government only approved support aimed at dealing with situations in which they are unable to exercise their activity for reasons of assisting children or other dependent children, under 12 years old (or with disabilities or chronic illness regardless of age) ), resulting from the closure of the educational establishment.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

I'm on vacation the company went into layoff and did I continue on vacation? Is the holiday allowance paid anyway? Can you suspend my vacation?

The lay-off, either in the “traditional” version provided for in the Labor Code or in the so-called “simplified lay-off”, does not affect the expiration and duration of the vacation, nor does it affect the booking and enjoyment of the vacation. In this context, you can continue to enjoy the holidays that were already scheduled and you will be entitled to receive the respective vacation allowance as if you were in a situation of normal work. There will be, however, the possibility of suspending the vacation, provided that the requirements provided for in Article 243 of the Labor Code are met, under which the employer can change the vacation period already scheduled or interrupt the already initiated as long as this is justified by imperative requirements for the operation of the company and, in this case, the worker is entitled to compensation for the losses suffered by not taking the vacation in the scheduled period. In any case, the interruption of the vacation must allow the vacation followed by at least half of the vacation period to which the worker is entitled.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

I am working in a home, replacing a colleague who is on sick leave, and I have been working for 4 months. We are doing 2 rotating weeks. I have an 8 year old son. But today I was told that I probably have to sleep at home. Since I have 1 minor child what can I do in this situation, why can't I be 15 days without being with my child? Since my husband also works and I have to leave my son with his grandmother during the day.

Once you have an 8-year-old child, you can claim the need for accompaniment due to the suspension of teaching and non-teaching activities. In this case, and provided that you cannot perform your work on a telecommuting basis, absences will be considered as justified absences and you will be entitled to financial support corresponding to 2/3 of the value of the basic remuneration, supported equally by the employer and the employer. Social Security, with a minimum value of € 635,00 and a maximum of € 1.905,00). We emphasize that, according to the understanding that has been broadcast by the Government, if your husband is working on a teleworking regime, you will not be entitled to this exceptional support. It should be noted that, in the case described, especially if the grandmother is within the risk groups, it is not advisable to leave the child with her during the periods when she has to work.

(reply from Tiago Lopes Fernandez, Consultant for the labor area of ​​Valadas Coriel & Associados)

 

My daughter is in a private nursery, which is closed like everyone else. It was demanded by the owner of the nursery that we pay € 160 of the € 200 monthly fee, excluding those for € 40 food! The nursery school will go into lay off. Do I have to keep paying that amount? This way, the owner of the nursery will profit from this situation, since she will receive help from the State and will receive the monthly fees in full (since the 40 € she did not spend on food also).

In principle, an annual service contract was signed between you and your daughter's nursery. A contract that, upon payment of a certain amount, the nursery school provides education and support services to the child. As such, it may require you to pay the monthly fee in full. However, there is a supervening change in circumstances - the nursery closed because of COVID-19. Thus, you should contact the nursery and inform that, once they are closed, the contractual relationship between the parties is no longer the same and you want a substantial reduction to be made to the monthly installment ( in addition to meals) or even inform that, since the contracted services can no longer be provided by the nursery, you intend to terminate the contract.

I would also like to remind you that you have to take into account that you will probably want the nursery to remain open in the future and that the monthly payment may help to keep it open.

(reply from Francisco Aventino Pinheiro, lawyer at Aventino & Associados)

 

If one parent is on a partial layoff regime (80%), in this case, every day he / she will have to go to the workplace, can the other spouse choose / benefit from the family accompaniment license (3 children under 12)? I question it, because telecommuting is not possible.

Who is telecommuting is not entitled to exceptional support to the family to accompany children up to 12 years old.

(reply from Francisco Aventino Pinheiro, lawyer at Aventino & Associados)

 

What can happen to the worker if he works and is on lay off?

If the worker is on a layoff basis and is working in another activity, he must inform the employer of the “layoff” of that fact. Failure to do so is subject to disciplinary sanctions.

(reply from Francisco Aventino Pinheiro, lawyer at Aventino & Associados)

 

If a company is in layoff due to suspension of the employment contract, can the employer call and ask for teleworking?

The company can do this. To do this, you will have to inform the Social Security, that the layoff has ended in relation to one or more workers and that they will provide their work in teleworking regime. The employee must ask his employer to inform him in writing that he will start working in telework. If he is teleworking, he is entitled to his full remuneration, as long as he is complying with the 40 hours per week.

If the employer does not make the payment, you must complain to the employer and ultimately make a claim to ACT.

(reply from Francisco Aventino Pinheiro, lawyer at Aventino & Associados)

 

By decision of my company, according to the contingency plan, we were divided into two teams. Is the week that each team stays at home paid by the employer or not?

From the data he reports and in the absence of others (eg, saying nothing if he is in a lay-off in the modality of reduction of working time (here we could still gauge whether it would be possible to reduce (divide) the working time in which he says the answer is yes, this week at home is paid.

(response from lawyer Manuel Marta, specialist in labor law and partner at SGFC - Seabra, Cunha, Marta e Associados)

 

If a company is on lay-off and workers have suspended contracts, can the employer call and ask for teleworking?

Being in a lay-off, the employee cannot perform work, even in teleworking, unless the company communicates this fact to the social security (that the lay-off for that employee ended) and instructs him to provide teleworking work. Continuing the worker with his salary reduced to 2/3? See the answer above, and after finishing the lay-off for this employee, working full time (usually 40 hours per week), you are entitled to receive your normal salary. How can the worker respond or do if that happens? In those assumptions, you should ask to be notified of the request in writing (to start working in teleworking and, if you are not paid the normal salary, claim your employer to pay it (the normal salary).

What can happen to the worker if he works and is on lay off?
It depends:
- If you work for your employer, you are entitled to receive your normal salary and lose the right to 2/3 pay;
- If you work for another company, the employee has the duty, within a maximum period of 5 days from the beginning of that activity to the other entity, to communicate this fact to his employer. In this case, depending on what you get, your compensation may be reduced.

(response from lawyer Manuel Marta, specialist in labor law and partner at SGFC - Seabra, Cunha, Marta e Associados)

 

I was sent home on a layoff basis for suspension of the employment contract, but the employer did not pay for the month of March, which I worked. What can I do?

There are several theoretically possible forms of reaction, based on the assumption that the worker is in a simplified lay-off regime in the form of suspension of the employment contract since the past 10th, and that there is a factual lack of timely payment of the remuneration of the month of March .

The suspension and eventual and subsequent resolution of the employment contract by the worker with just cause based on the non-payment of the remuneration punctually, at the present moment it seems to me strategically not to be the best option.

Thus, the worker may already present a complaint to ACT, regarding the lack of timely payment of the remuneration, and, consequently, this entity must challenge the employer to promote the missing payment, under the risk of incurring very administrative infraction liability. serious. If it is not the employee's intention to take the action / report with ACT, she can take steps to challenge her employer so that it promotes the payment of the missing remuneration under penalty of going to court. If, in fact, 60 days pass without the employer failing to pay the remuneration, you can dispute the possibility of terminating the contract with just cause and suing the employer, in addition, claiming the respective compensation.

Finally, and if the absence of payment remains during the layoff and the employer does not comply with the payment of 30% of the remuneration compensation (2/3 of the remuneration), it will incur in violation of one of its duties provided for in the lay scheme. off, which, in legal terms, may imply the return of support provided by the SS (70% of the compensation), while the employer remains in arrears with the worker. In this sense, you can also ask the Social Security to inspect the compliance by the employer with the obligations arising from this regime.

In the event that this occurs, the worker must use one of the various means at his disposal in order to see the remunerations to which he is entitled paid, in respect of those that are overdue before the layoff, or those that are expired during the term of the same.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

The bonuses received and which, although they can be variable, are regular and which at the end of the year we have to declare are part of the concept of normal gross remuneration in the simplified layoff?

First of all, it is important to bear in mind the criterion adopted by Social Security (and also by DGERT) for the purpose of paying the retributive compensation arising from the simplified lay off, which is as follows: All items are included in the “normal gross payment “, That is, the basic remuneration, seniority payments and other regular and periodic installments inherent to the provision of work, which appear on the monthly salary sheet.

On the other hand, it is still necessary to assess what type of remuneration the bonus in question will constitute (and if in fact it constitutes retribution), and fundamentally by whom and in what way, it pays it.

It's because?

Under the terms of article 260 of the Labor Code, only the remuneration that is due by virtue of the contract or the rules that govern it is considered as remuneration, even if its attribution is conditioned to the good services of the worker, and to those that, due to their importance and regular and permanent character, should, according to the uses, be considered as an integral element of the remuneration. The contributory tax base therefore only refers to bonuses due by contract, and those of a regular nature.

Even though the bonuses in question in the question raised are of a regular and periodic nature, it is essential, in the framework of the simplified lay off for the purposes of their eligibility in the retributive compensation that they were paid by the employer (which presumably does not occur, as normally in this case). activity the bonus is provided by the client and it is not imperative that he does) and even if they were included in the monthly salary receipt (which also does not happen, taking into account the formulation of the question).

From the above, I understand that it is extraordinarily difficult to defend that these bonuses should integrate the concept of illiquid normal remuneration to which the regime refers, in addition to the degree of risk associated for the employer when contemplating them in the calculation of the remuneration compensation.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

My daughter's school will go into layoff. Is the school required to report to parents that it has gone into layoff?

It will be obliged to communicate the entry into layoff only in the event that it changes the provision and the level of services contracted with it. If, despite the layoff, teaching activities continue to be ensured, even remotely, the school is not obliged to communicate such to parents, since it is an internal matter.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

In a 20% layoff, that is, in which the worker is reduced to 80%, who is paid? For the employer and social security? Does social security subsidize? While?

The 80% is paid solely and exclusively by the Employer. The remaining 20% ​​is advanced by the Employer but 70% (Social 20%) reimbursed by Social Security. This co-payment does not, however, prevent the Employer from having to pay the full 20% in time and wait for payment by the Social Security.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I am a casino worker, half of my income is a bonus stated in Annex A, field 402. The bonus is distributed by a commission and does not appear on the salary receipt. Is there any chance of this value being considered in this simplified Lay-Off? Can the worker leave the country during the Lay-Off Period?

Despite the provisions of Decree Law no. 10-G / 2020, more specifically in no. 6 of its article 6, determine the concept of normal remuneration, covering amounts in addition to the basic remuneration, what is certain is that Social Security services have provided information that employers should consider commissions excluded, even when they appear on the respective salary receipts and are subject to legal discounts. This not even being the case, it seems impossible to me that such amounts will be computed in terms of lay off.

As for the second question, during the lay off, rights and duties that are not exclusively related to the provision of work are maintained. Thus, without giving the legislation a clear and unambiguous answer, it seems that nothing prevents the worker from being absent, however, he is obliged to communicate if he is working and must be aware of the fact that he can be called at any time, once that the end of the lay off can be anticipated.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I am a hairdresser and I have been at home since March 20th. My boss closed the hairdresser on April 4th and said she put in a layoff, but she didn't pay me for March because she has no money. What can I do?

With 15 days late, you can request, by registered letter sent to the hairdresser, indicating the missing wages and giving eight days to be paid. If there is no answer, you must send the model of overdue wages to the Employer, with knowledge of the ACT in your area of ​​residence, for the purposes of receiving and accessing the unemployment fund. Alternatively, you can file a complaint with Social Security in writing and with ACT.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I work as a bankroll payer for the company Estoril-Sol in the Lisbon casino. My question is this: we receive monthly bonuses that, although they can be variable, are regular and that although they are not taxed monthly at the end of the year, we have to declare all this amount and pay taxes on it. I would like to know if these values ​​or an average of them can be calculated for the purposes of payments to be made during the layoff regime?

Despite the provisions of Decree Law no. 10-G / 2020, more specifically in no. 6 of its article 6, determine the concept of normal remuneration, covering amounts in addition to the basic remuneration, what is certain is that Social Security services have provided information that employers should consider commissions excluded, even when they appear on the respective salary receipts and are subject to legal discounts. This guidance is contrary to the provisions of the aforementioned legal provision, but a possible reaction can only be triggered through the ACT or, after the end of the declaration of the state of emergency, through the judicial system.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I was sent home on the 10th of April together with two lay-off colleagues. However, the employer did not pay for the month of March, which I worked on. What to do in these circumstances?

With 15 days late, you can request, by registered letter sent to the hairdresser, indicating the missing wages and giving eight days to be paid. If there is no answer, you must send the model of overdue wages to the Employer, with knowledge of the ACT in your area of ​​residence, for the purposes of receiving and accessing the unemployment fund. Alternatively, you can file a complaint with Social Security in writing and with ACT.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

If the person is in partial lay-off is it possible to take a vacation? Will the holidays be in proportion to the hours worked? In other words, if the person is working 4 hours, does he have to take 2 days to take 1 vacation?

Vacations are usually due, that is, each day worked fully counts, regardless of being on reduced hours. The difference is as to who is ultimately responsible for the payment of the subsidy, since, as for the part covered by Lay off, it is the object of co-payment by Social Security.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

I am a seller and my pay slip contains the following items: Basic pay; Time Exemption; Food allowance and commissions. What amounts are included in the normal gross remuneration for the purposes of simplified layoffs?

Despite the provisions of Decree-Law no. 10-G / 2020, more specifically in no. 6 of its article 6, determine the concept of normal remuneration, covering amounts in addition to the basic remuneration, what is certain is that Social Security services have provided information that employers should consider commissions excluded, even when they appear on the respective salary receipts and subject to legal discounts. This guidance is contrary to the provisions of the aforementioned legal provision, but a possible reaction can only be triggered through the ACT or, after the end of the declaration of the state of emergency, by judicial means. In this way, retrieving the previous example, the base salary and the exemption from hours would only enter.

(reply from Rita Garcia Pereira, lawyer and master in labor law)

 

If the person is in partial lay-off is it possible to take a vacation? Will the holidays be in proportion to the hours worked? In other words, if the person is working 4 hours, do they have to take 2 days to enjoy a vacation?

Yes. Lay-off workers can take vacations. The lay off does not affect the expiration and duration of the vacation period and does not affect the booking and enjoyment of vacations, in the general terms provided for in the Labor Code, with the employee entitled to payment by the Employer of the vacation allowance due under normal conditions of work. Holidays are taken for days, regardless of the number of hours worked per day.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

My company went into lay-off and I was in partial pay-off / 45%). My company announced that I will receive 45% in total and the remainder (55%) I will receive 2/3 more, 70% of which will be paid by the state and 1/3 by the company. And yet? It turns out that if you have a gross income of € 10.000 (it is easier for the accounts), it means that 45% is € 4.500. Since this amount is higher than € 1905 then according to the Social Security simulator, I will not receive anything else. And so? This goes against what the company communicated to me.

During the lay off period in the form of reduction of normal periods of work, the worker is entitled to the remuneration corresponding to the work performed and the compensatory compensation to the extent necessary to, together with the remuneration for the work performed, ensure the amount corresponding to two thirds of their normal remuneration, with the maximum amount corresponding to three times the minimum guaranteed monthly remuneration. The amount to be received by the employee has as a minimum limit the amount corresponding to the minimum guaranteed monthly remuneration (€ 635,00) and the maximum limit the amount corresponding to three times the minimum guaranteed monthly remuneration (€ 1.905,00). If the amount to be received by the worker is more than two thirds of the normal remuneration or the amount of € 1.905,00, the worker is only entitled to receive the amount corresponding to the work performed and does not receive any amount as compensation. If contributory compensation is paid, it is paid by 30% by the employer and 70% by Social Security. In the specific case, the worker is only entitled to receive the amount of € 4.500,00 corresponding to the remuneration for the work performed, as the amount is greater than € 1.905,00. Social Security will not pay any amount to the Employer, as there is no place to pay any amount as compensation.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

My son is 12 years old, can my wife stay at home to assist her child due to the closure of schools? Decree-law nº 10-A / 2020 of 13 March mentions “child under 12” meaning, in my understanding, that he is a minor and is 12 years old. The protection of parenting has the same logic: 12 years inclusive, that is, before the child celebrates the 0th anniversary. Do you have the right to financial support?

No. Under 12, it means you haven't turned 12 yet. From the day (inclusive) that the minor turns 12, he is no longer entitled to financial support.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

In the event that a company went into layoff as of March 18 in the “Reduced working time - Option 20%” modality, but only delivered the Application to Social Security Direct on April 3, how is it build the wages for the month of March? For example, a person who earns € 1.600, how much will he receive having worked 18 days in a normal situation and 13 days in layoff? And how much does the company receive from Social Segments?

During the lay off period in the form of reduction of normal periods of work, the worker is entitled to the remuneration corresponding to the work performed and the compensatory compensation to the extent necessary to, together with the remuneration for the work performed, ensure the amount corresponding to two thirds of their normal remuneration, with the maximum amount corresponding to three times the minimum guaranteed monthly remuneration. The amount to be received by the employee has as a minimum limit the amount corresponding to the minimum guaranteed monthly remuneration (€ 635,00) and the maximum limit the amount corresponding to three times the minimum guaranteed monthly remuneration (€ 1.905,00). If the amount to be received by the worker is more than two thirds of the normal remuneration or the amount of € 1.905,00, he is only entitled to receive the amount corresponding to the work performed and does not receive any amount as compensation. If contributory compensation is paid, it is paid by 30% by the employer and 70% by Social Security.

In the specific case where the normal fee is € 1.600,00, two thirds of the fee corresponds to the value of € 1.066,67. As the reduction in working time is only 20%, the worker will receive € 1.280,00 as remuneration for the work performed. As the amount is more than two thirds of the normal remuneration (€ 1.066,67), there will be no payment of compensation and social security does not pay any contribution to the Employer. We refer that the remuneration that the worker will receive is subject to legal discounts (IRS and TSU).

Regarding the month of March, it is our understanding that two operations should be carried out: i) one for the period between the 1st and the 18th of March 2020, in which the normal work processing for that period is done, because the worker has been working full time and ii) another for the period between the 19th and the 31st of March 2020 in which the worker is in lay off with reduction of the normal periods of work in which the aforementioned apply lay off rules. In this case, as the worker was not laid off for the entire month, it is our understanding that the proportionality principle should be applied to calculate the amount corresponding to two thirds of the normal remuneration. The gross amount receivable by the worker corresponds to the sum of the two calculated values.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

I would like to know if it is legitimate for an IPSS to charge monthly fees (albeit at a discount) when it puts its workers on Lay-off and when we are talking about daycare services (for children up to 3 years old) in which there is no compensation activity for part of the school (sending activities, videocall, etc.)?

Yes. Ordinance No. 85-A / 2020 of 3 April grants the IPSS autonomy in reducing family contributions.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

I am on a layoff regime and have a career promotion, for length of service, for April 20, which implies an increase in the base salary. Does service time continue to count in the layoff regime?

During the lay-off period, in the event of a reduction in the normal working period, the rights, duties and guarantees of the parties are maintained, under the terms set out in the Labor Code and in the event of suspension of the employment contract, the rights, duties and guarantees of the parties that do not presuppose the effective provision of work, under the terms provided for in the Labor Code. Decree-Law No. 10-G / 2020 only refers to the provisions of the Labor Code and not to the provisions of the Collective Labor Regulation Instruments (IRCT). The Labor Code does not provide for career promotions, or counting length of service. As a rule, these matters are provided for and regulated in IRCT or in the Company's Internal Regulation. In order to be able to respond rigorously to the question posed, it is essential to know what type of lay off the worker is in and the IRCT or Internal Regulation that applies to the employment relationship.

(reply from Gabriela Rei, Lawyer responsible for Kennedys Labor Law)

 

An IPSS that has daycare and pre-school social responses and that are closed, has cooperation agreements, that is, it receives public support from Social Security in order to bear part of the cost of children in daycare and pre-school. Now, at this stage, children do not attend social responses. Can this IPSS adhere to the simplified Layoff for its daycare and pre-school workers, reducing their wage charges and cumulatively benefiting from public support regarding Social Security financial contributions?

The Lay-Off regime, namely the simplified Lay-Off provided for in Decree-Law no. 10-G / 2020, of 26 March 2020, is applicable to employers of a private nature, including employers in the sector social workers and workers at their service, who are in a business crisis situation due to the Covid-19 pandemic.
Thus, an IPSS can also adhere to the mechanism for suspending employment contracts or reducing the normal working period, commonly called Lay-Off.
The support resulting from the application of the aforementioned Decree-Law can be combined with other support that may be granted, namely that resulting from any existing cooperation agreements.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

If a worker receives “exemption from working hours” and “cash failure allowance” monthly, in a hypothetical simplified layoff regime, are these allowances considered for the calculation of the reduced remuneration by the layoff or is only considered the base salary?

The employee covered by the Lay-Off is entitled to receive a monthly minimum amount equal to two thirds of his normal gross remuneration. By normal gross remuneration must be understood all the regular and periodic benefits and subsidies that the worker receives. Thus, if one considers the allowance for exemption from working hours and the cash subsidy that the worker receives monthly as an integral part of his remuneration, they must be considered when calculating the amount that he should receive when subject to the Lay-Off regime. .

For future retirement purposes, what remuneration is considered, will the total amount or the amount be reduced by the layoff?
The worker cannot be harmed, namely in the remuneration to be considered for the calculation of his retirement, due to the fact that he has been subject to a reduction of his normal period of work or because his employment contract has been suspended (Lay-Off) for determination of your employer.
Thus, the remuneration that he received under normal working conditions must be considered.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

My husband is an auto salesman, his company sent salespeople home in layoffs, but before that he made him book a vacation. He marked the first 2 weeks of May however the layoff goes until May 2 the question is whether to continue in layoff after May 2 he has to spend the scheduled vacation or are they suspended to be enjoyed at another time? He received an email saying who had a vacation already scheduled that you were on vacation, implying that you were enjoying it in layoff. This is cool?

The fact that the company uses the Lay-Off mechanism does not affect the booking and enjoyment of the vacation period. That is, the worker can take a vacation during the application of this measure.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

My boss didn't join the layoff, but he told me to stay at home. In this case, do I get my full salary or 2/3 like those who joined the layoff?

If the employer has not resorted to Lay-Off (that is to say, the reduction of the normal working period or suspension of the employment contract), it cannot reduce the remuneration of its workers as if this measure were applicable to them, even though, by their determination, they are not performing their activity.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

If I have chosen to receive half of the holiday and Christmas allowances in twelfths, will these twelfths continue to be paid monthly in layoff or are they suspended and paid by the employer after the end of the layoff?

If the employee pays the holiday and Christmas allowance in full during the application of the Lay-Off measure and the law does not provide for this payment to be granted for a later time, then, despite the legal deadlines, his payment may continue to be carried out in twelfths, as agreed between the worker and the employer.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

Holiday and Christmas allowances are paid by those in layoffs? For Social Security or the employer? And when do they have to be paid?

It is the responsibility of the employer who has used Lay-Off to pay the holiday allowance to the worker, in the amount corresponding to what would be due under normal working conditions.
The Christmas allowance must also be paid in full, the payment being shared between Social Security, which will assume the payment of 50% of the compensation, and the employer, who will be responsible for paying the remainder.
Payment of allowances must be made at the time that would be due under normal working conditions.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

Does the choice of people to layoff have to obey objective criteria? Can the choice of the same people in the case of a renewed layoff be considered discrimination?

The selection of workers covered by the Lay-Off must obey objective criteria, duly justified and justified, and never a way of benefiting or privileging one worker to the detriment of another or others. The same happens in case of extension of the initial period of application of this measure, nothing preventing the workers from being the same, as long as such choice is justified and legitimate, under penalty of being discriminatory.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

Is the contract more favorable to the suspension of the contract or the reduction, in terms of remuneration? In reducing working hours, does Social Security subsidize the company?

The law provides that during the period of reduction or suspension of the employment contract, the worker is entitled to receive a monthly minimum amount equal to two thirds of his normal gross remuneration or the value of the minimum guaranteed monthly remuneration corresponding to his normal working period , whichever is higher.
This means that there may be no wage distinction between a worker whose contract has been suspended and one whose normal working hours have been reduced (Lay-Off).
However, nothing prevents the employer from making a distinction between workers whose employment contracts have been suspended and those who have only suffered a reduction in their normal working period, provided that they comply with the payment of the aforementioned minimum amount.
Social Security participates in the payment of compensation to the worker, either in the event of a reduction or in the event of suspension of the employment contract.

(response from Sofia Monge, Labor Law Lawyer and Partner at Carlos Pinto de Abreu & Associados)

 

Does the normal gross remuneration for the purposes of the layoff, include seniority since they are regular monthly?

Yes, I did. The concept of “normal gross remuneration” provided for in the Labor Code (art. 305) to which the legislation that institutes the simplified layoff refers (paragraph 4 of art 6 of Decree-Law 10G / 2020 of 26 March) “… involves basic remuneration, seniority and all other regular and periodic installments inherent to the provision of work, which appear on the payroll ”, according to the constant answer in the FAQ's available on the Social Security website (exceptional and temporary measures to respond to epidemic covid19 - Government of the Republic - Labor, Solidarity and Social Security).

(reply from CPA lawyer Fátima Valadas Godinho - Carneiro Pacheco e Associados)

 

In a daycare center, where employees are usually paid a meal allowance in kind and, since childcare workers are currently working on teleworking, are they entitled to receive meal allowance, when the establishment is closed? 

Yes, teleworkers retain the right to payment of the meal allowance. This is a controversial issue, since there are different understandings, one of which is that the meal allowance is not maintained since it aims to compensate workers for expenses with meals taken in effective service outside their usual residence. However, in a note published on the UGT website, news is reported that DGERT will have clarified the general secretary of UGT in favor of maintaining the meal allowance, starting to transcribe: “… it is necessary to inform that, it is the understanding of the General Directorate of Employment and of Labor Relations (DGERT) and the Authority for Working Conditions (ACT), that teleworking work gives the worker the same rights that he had been gaining when he was in person at the job, with the aim of justification for the wording currently in force of paragraph 1 of article 169 of the Labor Code ... ”. The ACT's website also contains the position of this entity in the sense that the meal allowance should be paid on a telework basis, as explained in question 18 of its FAQS.

(reply from CPA lawyer Fátima Valadas Godinho - Carneiro Pacheco e Associados)

 

Can a managing partner with 1 to 5 employees and a declared salary benefit from the layoff?

No. As provided for in Decree-Law No. 12-A / 2020 of 6 April, the new regime of extraordinary support for the reduction of economic activity is only granted, with the necessary adaptations, to the managing partners of companies without workers for account of others, who are exclusively covered by social security schemes in that capacity and who, in the previous year, had their invoices communicated through the E-invoice less than 60.000 euros.

(reply from CPA lawyer Fátima Valadas Godinho - Carneiro Pacheco e Associados)

 

My company, for the purpose of remuneration during the layoff period, interprets the “normal gross remuneration” established in the legal statute, as the fixed gross monthly remuneration, which is paid 14 times a year. This interpretation excludes the variable remuneration that appears monthly on the salary receipt and is taxed for the purposes of TSU and IRS, but which is paid 12 times a year, being excluded from holiday and Christmas allowances. Is the payment 14 times a year, as a criterion for the definition of the gross monthly remuneration, correct and in accordance with the law that regulates the simplified layoff? Since the interpretation is not correct and there is no intention, on the part of the company, to revise its interpretation, what means or entities can workers in this situation resort to?
 
The law does not establish the criterion for defining the payment of wage types only 14 times a year, for the purposes of inclusion in the normal gross remuneration and, consequently, for the calculation of the compensation arising from the lay off.
The “normal gross remuneration”, includes the basic remuneration, seniority payments and other regular and periodic installments inherent to the provision of work, which appear on the payroll.
In the specific case, we will be in the scope of a mixed remuneration: consisting of a fixed remuneration plus a variable remuneration component with a periodic, regular and even monthly character, which is why I understand that these variable components of the remuneration paid 12 times a year should included in the normal gross remuneration for the purposes of calculating the compensation. There is no legal criterion for considering only those that are paid 14 times a year should be covered.

With regard to allowances, when workers are paid for layoff purposes, the holiday allowance should not be included even if paid in twelfths, and the employer must pay the entire amount related to the vacation and the respective allowance under the terms of article 306. of the Labor Code. As for the Christmas allowance, although not questioned, the same article provides that the compensation due to the worker is paid in full, and that amount is paid by Social Security in an amount corresponding to half of the compensation (therefore 1/2 of the 2/3 of the employee's gross wages) and by the employer in the remainder.
From the above, it appears that there are remuneration components with a regularity and periodicity character, and the payment 12 times a year, makes them unequivocally regular and periodic. In this circumstance, the worker may report such occurrence to the SS, for the purposes of monitoring the application of the simplified lay-off regime in the company in question, to ACT so that it also promotes inspection and, if necessary, institutes administrative proceedings, and may also , unionize the payment of labor credits due and which will not be paid, as they should, as the company, creatively adopted a criterion for the exclusion of these credits, which the law clearly intends to protect.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

Being in layoff, my boss can call me a day or two to work, then I go home 5 days, then call me again one day… How is this payment made?

It can. Companies can go into lay off and add and remove workers, without the end of the measure. The period of validity remains unchanged.
If they need employees for a certain task for a moment, they can put workers to work during that period, however they will have to report all changes to Social Security, because during the period in question there is no place to pay the compensation, but the salary or other benefits, as the case may be.
Any change in suspension, reduction of working hours, inclusion or exclusion of workers can be made, provided that it is communicated to Social Security.
In the specific case, the payment in the periods in which you are working normally, and therefore, excluded from the simplified lay-off regime, must be processed in the usual terms, earning the normal value for each day of work carried out, on which incur TSU of the company and worker and IRS, with no exemption. In the periods in which he is included in the simplified lay-off regime, he earned 2/3 of his normal gross remuneration with a minimum value of € 635 and a maximum of € 1905, assuming that he will be in the form of suspension of the employment contract, as results from the question, 70% of which will be provided by Social Security and 30% by your employer. The employer is responsible for making the payment to the worker as usual at the end of the month, as these periods of insertion or exclusion from the simplified lay-off are determined.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

In a daycare center, where employees are usually paid a meal allowance in kind and, since childcare workers are currently working on teleworking, are they entitled to receive meal allowance, when the establishment is closed?

This is not the time for a thorough legal and labor analysis on the imposition decreed by the Government, which also in the private sector - as had already been decided in the public sector - is due the value related to the food subsidy for workers now under the labor regime. teleworking. In the specific case, since it is a kind of remuneration which, due to the fact that the educational establishment is closed, and therefore cannot be granted, it seems to me that there will be no other alternative to the educational establishment other than the replacement of this remuneration in kind (meal) for a monetary amount during the period in which it is closed, as decided by the Government. Therefore, the employer must pay the daily amount of the food allowance or allocate meal vouchers, as it has become objectively impossible to continue to provide food at the educational establishment, as would happen previously.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

I am 58 years old. Throughout 2019, I received a monthly payment due to the pre-retirement situation in which I find myself. The company where I worked continues to discount for social security until my retirement. At the same time, I have been working as a manual therapist (masseuse), for which I pass green receipts, but not a discount for social security. My masseuse activity is stopped (social distance). Can I apply for social security support for reduced income?
 
No. The extraordinary support for reducing economic activity created for self-employed workers (now extended to members of statutory bodies, such as managing partners and administrators) requires compliance with access requirements, such as:
• Discounts in at least three consecutive months in the last 12 or discounts in six months interpolated for at least 12 months;
• They must be covered exclusively by the self-employed regime;
• They cannot be pensioners;
• They must be in a proven situation to stop their activity altogether, or the activity of that sector, as a result of the outbreak of COVID-19; or
• By means of a declaration by the owner together with a certified accountant's certificate attesting to it, in a situation of abrupt and sharp break of at least 40% of the billing in the period of thirty days prior to the request to the competent social security services, with reference the monthly average of the two months prior to that period, or compared to the same period of the previous year, or, for those who started the activity less than 12 months ago, the average of that period;

Now, in the specific case, there is no right to this support, for two reasons: first, because it does not fulfill the essential criterion of the contributory obligation in the last 12 months; second, because, as a pensioner, you have been receiving your pension since 2019.

When it is said that '' it passes green receipts, but does not discount for social security '', this is due to the fact that pensioners are exempted from paying Social Security contributions, that is, as a pensioner, they can work in the self-employed regime, issuing “green receipts”, but without discounting to Social Security. In short, pensioners, as is the case, are in fact exempt from social security contributions. Of course, they can choose not to benefit from this exemption, but in the specific case, it will actually benefit.

Finally, it should be added that one of the criteria to be able to benefit from this support is, precisely, to be covered exclusively by the self-employed regime, which is not the case, and not to be a pensioner, who also does not comply.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

The company I work for went into layoff. I got a job now at this point to get some more money. The time does not coincide with the time I had at my other job (which is currently closed due to the pandemic state). Am I entitled to receive the same 2/3 of the salary? Or will I be penalized?

The answer to the question in the specific case is: it depends. And it depends on several circumstances. It may be penalized or not.
First of all, you can work for another company as long as you are not a direct competitor of your employer, however, you will always have to communicate it to the employer, up to five days after the beginning of the activity. In fact, article 6 in numbers 4 to 7 of Decree-Law no. 10-G / 2020 of 26 March provides that there may be penalties, so that there may be adjustments in the compensation to which you are entitled, if the remuneration exceeds the € 1905 foreseen as the maximum limit.
It's because?
Let's see what you have at the date, article 6 of Decree-Law no. 10-G / 2020 of 26 March:

4 - The retributive compensation to which the worker is entitled is fixed under the terms of paragraph 3 of article 305 of the Labor Code, being paid by the employer.
Article 305 no. 3 of the CT provides as follows:

"3 - During the period of reduction or suspension, the worker has the right to compensatory compensation to the extent necessary to, together with the remuneration for work performed in or outside the company, ensure the monthly amount referred to in paragraph a) of paragraph 1, up to three times the guaranteed minimum monthly fee. ”

5 - During the period of application of this measure, the company is entitled to financial support for the purpose of paying the compensation provided for in the preceding paragraph, pursuant to paragraph 4 of article 305 of the Labor Code. (70% - SS and 30% - Employer)

6 - Without prejudice to the provisions of paragraphs 4 and 5, until June 30, 2020, the remuneration compensation is paid by reference to the normal gross remuneration for the work performed in the company, with the Social Security services subsequently making the adjustments that follow. necessary, with any refund of amounts unduly received.

7 - For the purposes of the preceding paragraph, if the worker exercises remunerated activity outside the company, he must inform the employer, within five days of the beginning of the same, for the purposes of any reduction in the remuneration compensation, under penalty of loss of the right to retributive compensation, as well as the duty to refund the amounts received for this purpose, the omission constituting a disciplinary infraction.

Thus, responding directly to the question, and to this day - and this is not of minor importance, given the numerous amendments to the diploma that governs the simplified lay off -, in principle, it should be penalized in the legal terms mentioned above.

Let us see, then, why I understand that, in theory, the worker who made the effort to promote employability in another company in order to try to earn more income, in the current context may be penalized according to the legal command identified above, but in practice such power may not come to happen, which is welcomed. What we already know today is that workers who are under reduced working hours or suspended from the employment contract arising from the simplified lay-off regime, will only be able to work in certain sectors, insofar as the Council of Ministers approved the 9th of April, a decree-law that states that “People under a regime of reduction of the normal working period or suspension of the employment contract may exercise paid activity as long as in the areas of food production, social support, health, logistics and distribution”.

However, and here is the "touchstone" for the eventual non-penalty is that it is expected in the next few days that a rule of exception will be published to the mentioned article 6, paragraph 7, which, presumably, should have the following wording:

To the worker covered by the regime of reduction of the normal period of work or suspension of the employment contract, under the terms of Decree-Law no. 10-G / 2020, of March 26, who exercises paid activity outside the company with which he maintains the suspended legal employment relationship or whose normal working period is reduced, pending the reduction or suspension, does not apply, exceptionally, paragraph 7 of article 6 of the referred diploma, in the part referring to the possible reduction of compensation retributive, if said activity is carried out in the areas of social support, health, agriculture, logistics and distribution.

If this is confirmed, the penalty may in practice not apply, exceptionally, if the worker in question carries out this activity outside her employer in the above areas or sectors. Outside these sectors of activity, the eventual reduction in the remuneration compensation provided for in article 6 will remain in force. No. 7 of Decree Law No. 10-G / 2020, of 26 March.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

I have a question about the breastfeeding schedule. I have a collaborator who is breastfeeding, so she only worked 6 instead of 8 am (2 am was justified and paid). Our entire company went into lay-off including this employee for whom I am responsible. The company put it at 25%, that is, it only works 2 hours a day. Does she still have the right to 2 hours of breastfeeding? If so, does the company have to put it to work 4 hours so that it works 2 hours?

You still have the right to a layoff for a period of breastfeeding that will be measured in relation to the proportion of the normal working period that has been reduced, as you will find yourself working part-time. Under the terms of article 47 of the Labor Code, the daily allowance for breastfeeding or breastfeeding is reduced in proportion to the respective normal working period, and cannot be less than 30 minutes.

Therefore, it would be necessary to determine the proportion of the 2 hours that legally enjoyed full time in order to know the proportionate period for breastfeeding in the scenario of a 75% reduction in PNT [Normal Working Period], and always with respect for the aforementioned 30 minutes. dismissal. The company will not necessarily have to put her to work for four hours - that is, with a 50% reduction in the PNT - so that she works two hours and has another 2 hours of the right to breastfeeding, as explained above, although the regime provides that different workers may also have different working time reduction regimes, provided that such differentiation is duly justified. Such a differentiation cannot contain in itself a discriminatory character. In the specific case, and with the aim of the worker being able to enjoy the legally mandatory part-time exemption from breastfeeding, I would not be shocked or would not consider indisputably discriminatory if I could have a reduction in the normal period of work in a different layoff, which the 30-minute dispensation for breastfeeding purposes. If the transmitted scenario is maintained, that is, a reduction of 75% in the PNT, the truth is that of these 2 hours of work, the worker will be entitled to 30 minutes within that period of work for breastfeeding.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

Can a managing partner with less than 6 employees and a declared salary benefit from the layoff?

No. The company can always resort to the lay-off regime, however, only employees (read, with employment contract and as such communicated to Social Security) may be covered by the regime and, as a consequence , benefit from the retributive compensation of 2/3 of the normal gross remuneration.
The members of statutory bodies (managing partners, administrators), with self-employed workers, cannot, by the interpretation of the law, be covered by the simplified lay-off regime in the measure of the 2/3 remuneration compensation, since being MOE, they are the ones who oblige society, so they cannot be included in the list of workers covered.
This is expressly mentioned by the Social Security in the instructions for filling in the forms to be submitted: “Only workers with qualifications of the type“ Employee on behalf of Others (TCO) ”must be included in the list. Members of Statutory Bodies (EOMs) cannot be included in the list of Workers ».
The benefits that are clear from the law for members of statutory bodies with self-employed workers are two: that of the temporary exemption from the payment of Social Security contributions and that of an extraordinary financial incentive to support the normalization and resumption of the company's activity, to be granted by the IEFP, paid in one lump sum of € 635,00 (one national minimum wage) for each job held, non-repayable.

(reply from Pedro da Quitéria Faria, Lawyer specialized in Labor Law and Partner at Antas da Cunha ECIJA)

 

I will go into layoff on April 13th in the period of four weeks, however I would go on vacation on April 29th. Do I have to take the holidays or are they without effect and are taken when the layoff is over?

If there is no agreement in a different direction that you may establish with your employer, the vacation that you had already scheduled and the respective enjoyment is maintained during the lay off period. Whether in the form of a reduction in working hours or in the form of suspension of the employment contract, the so-called lay off does not affect the expiration and enjoyment of holidays, in your case scheduled to be taken from April 29th. The only peculiarity is that the normal gross remuneration during the holiday period is reduced to two thirds of its normal remuneration, with a minimum corresponding to the national minimum wage (635 euros) and a maximum corresponding to three times its value (1.905,00 euros) ), the holiday allowance being due under normal working conditions (that is, in full) and paid in full by the employer.

(response from labor law lawyer Miguel Granger Rodrigues)

 

I am on a layoff regime with the contract suspended ... and I am a little confused about what I will receive. Even with a minimum wage you only receive 2/3 of the 635, which I believe gives 423 euros and then 11% is withdrawn for social security? Does this mean that in total we received 376 euros?

In the lay-off modality corresponding to the suspension of the employment contract that she indicates is her own, the worker is entitled to receive compensation in the amount corresponding to two thirds of her normal remuneration, but which can never be less than the national minimum wage (minimum value of 635,00 euros) and a maximum corresponding to three times its value (1.905,00 euros).
This means that if the value corresponding to 2/3 of your normal gross remuneration is less than 635,00 euros, then you will always be entitled to this amount of minimum compensation. On this amount and during the lay off period, the 11% contribution paid by the worker to Social Security (the so-called TSU) will continue to apply, only the employer being exempt from the respective contribution percentage for the duration of the lay off.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Both in the layoff regime and in the layoff with reduced working hours, is the employer obliged to inform the worker of which regime he is on?

The so-called lay off regime resulting from the emergency legislation enacted by the Government through Dec. Law No. 10-G / 2020 of 26/3, whether in the form of reducing the normal working period or suspending the employment contract, requires that the employer, prior to its entry into force and in writing, communicates to each and every worker covered, the measure it will adopt and the period (without prejudice to being able to extend it later, with a limit of three months ). Thus, the employer is always obliged to communicate, in writing and prior to its effectiveness, the lay-off regime that it intends to use and apply to its workers.

(response from labor law lawyer Miguel Granger Rodrigues)

 

Can a company that puts all employees on lay-off continue to bill? Is it possible to put some employees on lay-offs and others on partial work?

In the so-called simplified lay-off regime, the company may choose to place workers on a regime of reduction of the respective normal working period (aka, partial work), or resort to the suspension of the employment contract, or even resort to both regimes provided that do not apply them simultaneously to the same workers or group of workers. It is up to the employing entity to decide and justify which, or which, the measures, or set of measures, it considers best suited to its case.
As for the fact that the company puts “all employees on lay-off and continue to bill” the question is not clear, since the expression, strictly speaking, is associated with charging the price of services provided or products sold. Having such sales occurred before the company entered the lay-off regime, it does not prevent its subsequent billing to customers during such period. If the expression “continue to bill” is faced in a context of total lay-off of the company's workers, in the sense of continuing to work (sell and collect), everything depends on the specific situation. This is because, the situations that justify the use of the exceptional and temporary lay-off regime approved in March (DL nº 10-G / 2020) result, in summary, from three type situations: total or partial closure of the company or establishment because of duty of closure determined legally or administratively (i), decision of the company due to the total or partial stop of its activity or the establishment resulting from the interruption of global supply chains, or the suspension or cancellation of orders (ii); or an abrupt and sharp drop of at least 40% of the company's billing in the 30 days prior to the request from Social Segment (iii).
If in cases of total closure or total shutdown of the company with the application of the lay-off regime to all workers, we see it as very difficult for it to continue to work (and bill), in other cases of partial stoppage or simple abrupt drop in billing (without stopping or completely closing the activity and the company, but a simple reduction) we have no incompatibility that the company can continue to work and bill. In fact, such types of situations seem to us to be incompatible with the use of lay off in the form of suspension of the employment contract of all of its employees, since at least some, if not all of the workers, will have to be covered by the measure of reduction of the normal working period in order to ensure some work / production, even if reduced.

(response from labor law lawyer Miguel Granger Rodrigues)

 

As the company is in a simplified lay-off regime, the employer is entitled to social security support in the amount of 70% of 2/3 of the gross normal remuneration of each worker covered, up to a limit of 1.333,5 euros per worker, to support the payment of wages. If the employer chooses, in addition to the 30% of his / her liability in 2/3 of the normal remuneration, to supplement with more than 1/3 of the normal remuneration (processing and paying the 100% of the normal monthly remuneration), the company can still have the support of 70% of 2/3?
As an example, an employee with 3.000 Euros of gross monthly remuneration, in which the company in a Simplified Lay-Off regime, ensures 100% of the gross monthly remuneration, can benefit from Social Security support for the 1.905 euros (reimbursed at 70% for social security)?

The question posed to us, although it needs it in its terms, does not indicate to us which of the simplified lay off measures are underlying in the case (whether the reduction of the normal working period or whether the suspension of the employment contract). However, by the example given, we assume that this is a situation of suspension of the employment contract.
The answer to this question presupposes that the company can apply or has requested any of the Social Security support measures based on one of the situations that allow to benefit from the financial support measures: total or partial closure of the company or establishment because of the duty to close. determined legally or administratively (i); company decision to stop all or part of its activity or establishment resulting from the interruption of global supply chains, or the suspension or cancellation of orders (ii); or an abrupt and sharp drop of at least 40% of the company's billing in the 30 days prior to the request from Social Segment (iii).
If these are verified, the maintenance of the financial contribution of the Social Segment should it wish to ensure a remuneration above 2/3 of the value of the employee's gross normal remuneration, namely those mentioned “100% of the gross monthly remuneration”, by application of the provisions of paragraph a) of no. 1 and no. 3 of article 305 of the Labor Code (lay-off rule regime, applicable to simplified lay-off), it is our understanding that nothing prevents the employer from ensuring and paying the differential for the 100 % of this, and in such a case you will never receive a contribution from Social Security higher than 1.335,00 euros (70% of 1.905,0 euros).
It should also be noted that in such a case, it is understood by the Social Segment that the other benefit from the temporary exemption from payment of TSU in charge of the employer (article 11 of DL nº 10-G / 2020), does not cover the this part of the remuneration is overpaid by the employer (that is, the amount above the 2/3 remuneration compensation provided for by law).

(response from labor law lawyer Miguel Granger Rodrigues)

 

My monthly receipt describes the basic salary, plus the allowance for Sundays worked, and the allowance for night hours. After this sum, discounts are due for TSU and IRS. Does my normal gross remuneration for the purposes of lay off, include those allowances, since they are regular monthly?

Your normal gross remuneration covers not only your basic remuneration, but also other regular and periodic payments, namely seniority payments and subsidies related to the specific way in which you perform your work. In your case, because you work at Night and on Sunday, your normal gross earnings for the purposes of simplified Lay Off include the Night Allowance and the Sunday Allowance.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

I am a Commercial in a company that is in Layoff (normal). My remuneration consists of a fixed and a variable component (sales commissions). Each month on the payroll there are these two aspects, which are subject to discounts for both social security and the IRS. I ask, for the calculation of the net normal remuneration, will the commissions have to be considered or not? Shouldn't an annual average of commissions be made, and this should be added to the fixed amount?

The normal gross remuneration includes the basic remuneration, seniority if any and all other regular and periodic installments inherent to the provision of work, which appear on your salary receipt, namely commissions. Since your remuneration takes on a fixed and a variable modality, to determine the value of the variable remuneration, through the payment of sales commissions, the average of the amounts of these installments corresponding to the last 12 months, or over time performance of the employment contract that has lasted the least time.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

My company will go into a simplified lay-off, how do I have a presence premium that can be withdrawn?

As a rule, the attendance bonus does not include the remuneration. It constitutes a financial incentive that aims to combat absenteeism and reward worker attendance, its attribution being random and occasional in nature, and therefore cannot be integrated into the remuneration. Only then it will not be, if it is regularly paid, independently, or even though the worker is not assiduous. That is, if it has been agreed with the Employer to pay an attendance premium for each full month of work, then this will integrate the concept of remuneration. In this case, this constitutes a regular installment, due by virtue of what was contracted by the parties, whose payment, having verified the conditions of its attribution, is guaranteed in advance. Depending on your specific case, your attendance premium may or may not be withdrawn.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

Do overtime, bonuses and bonuses also qualify for calculating illiquid wage remuneration in a lay-off regime?

It all depends on your specific employment situation. The gross remuneration comprises basic remuneration and all other regular and periodic payments made, directly or indirectly, in cash or in kind. Thus, occasional payments, as a gift or reward, and extraordinary, or merely compensatory expenses incurred by the worker, such as remuneration for overtime, subsistence allowances, and other compensatory allowances, bonuses, are not part of the remuneration. extraordinary. However, those payments can integrate the remuneration, if they are made with a regularity and continuity character, creating in the worker the conviction that they are a complement to his salary.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

How should I proceed if my company is in a simplified layoff? Should I go to work when I am called and how many hours per week?

First of all it is necessary to distinguish whether you are in a situation of suspension of the individual employment contract or of temporary reduction of the normal period of work. In the first situation, there is a suspension of the main provision and ancillary duties, so it will not be possible to perform the tasks that are characteristic of your usual work performance. In the second case, since there is only a reduction in the normal working period, it is possible, and even supposed to continue to work. Your Employer will have to inform you in writing of the situation and terms on which you placed it under the simplified Lay Off. In the event of a reduction in working hours, the extent of this reduction may vary, depending on your company's management and planning needs. The extent of the reduction can be defined, in a variable way, according to certain sections and areas of activity. This reduction can also be made not according to daily or weekly periods, but according to monthly periods. For example, an employer may require a worker to be reduced to go to work in the last week of the month, or the last 4 days of the month because he is affected by certain commercial standards of productivity. Nothing is opposed, that the reduction can be measured throughout the month. This is generic information, to be adapted to your specific case.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

My company has put the 4 workers on lay-off since April 1st. I have been doing a few hours a day (between 3 am and 6 am) and I would like to know if you pay 70% plus the value of the hours I work at 100%? Am I entitled to the lunch allowance for the days I go to work? Is it possible for my employer to force me to make a completely different schedule or to accept a different contract in times of lay-off?

As far as he is concerned, he is in a situation of temporary reduction of the normal working period. Having not informed the terms and conditions stipulated for the reduction of working hours in your specific case, it is not possible to answer your salary question. Regarding the lunch allowance, since the situation of reduced working hours must be assimilated to the legal regime provided for part-time workers, whenever you have a normal working period of 5 hours, you will be entitled to receive in full the meal allowance. If you are in a situation where the normal working period is less than 5 hours, a proportionality judgment should be applied, with reference to 8 hours, as it is necessary to adapt. Making this reference of proportionality taking into account that a worker who works 5 hours receives a meal allowance, who works 4 will be entitled to 4/5.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

I want to know if I'm telecommuting, do I have the right to a food allowance?

Teleworkers maintain the same rights and duties as other workers, which means that there is no loss of food allowance. The information was confirmed by the office of the Minister of Labor, Solidarity and Social Security, Ana Mendes Godinho.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

I am a salesman and my salary receipt contains the following remunerations for more than 12 months: Basic salary; Time Exemption; Sub Food and Commissions. What values ​​are included for layoff?

Excluding the food allowance, which does not include the concept of remuneration, all the other amounts indicated, such as the basic salary, integrate the concept of normal and gross remuneration within the scope of the simplified Lay Off. The allowance for exemption from working hours is a component of the remuneration to which you are entitled, since it is a regular and periodic benefit that is paid to the worker in return for the provision of the activity. As Commissions for the purposes of normal and gross remuneration, you are entitled to the amount that results from the average of the commissions in the last 12 months.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

Working at dawn, does the night allowance go to illiquid base even though it is in lay off?

Yes. The nightly allowance is effectively a component of the normal and illiquid remuneration to which you are entitled under the simplified Lay Off, whenever it constitutes a regular and periodic benefit that is paid to the worker in return for the provision of the activity.

(response by lawyer Catarina d'Orey, from C'O Advocacia e Serviços Jurídicos)

 

Who is at home to assist children under 12 will receive 100%?

Only if you are at home to care for children in quarantine or sick will you be entitled to receive 100% of the base salary. If you are at home to accompany your children under the age of 12 due to the closure of schools, you are only entitled to financial support corresponding to 2/3 of your basic remuneration, with a minimum limit of Eur.635,00 and a maximum of Eur. 1905, paid in equal parts by the Employer and Social Security. It is a condition that none of the parents is on a teleworking regime. This support will not be granted to you during the Easter holidays - between March 30th and April 13th - even if you continue to benefit from the statutory regime of justified absences during that time period. Except in the case of minors up to 3 years of age attending nurseries, daycare centers or Social Security nannies, since in these institutions there is no formal school vacation period as in other levels of education, in this case, monetary support is maintained during this period.

(response from lawyer Catarina d'Orey, of the C'O Advocacia and legal services office)

 

Having worked in March, is it legal to have paid this month's salary already as a lay off ??

There are legal doubts on this issue, but it would be useful for you to confirm the date that your Employer placed either in the communication you addressed, or in the form submitted to Social Security regarding the beginning of the Simplified Lay Off.
Depending on the fundamentals of the Lay Off request and the proof presented by your Company, the financial support may go back to March 2020. In any case, the gross monthly amount receivable is reduced to 2/3, although it can never be lower to Eur.635,00.

(response from lawyer Catarina d'Orey, of the C'O Advocacia and legal services office)

 

If we receive subsidies in twelfths, the company entering into a lay-off has to pay them every month, right?

This issue is complex, but making an analogy with the classic Lay Off, regarding the twelfths paid monthly, and in the case of a regular and periodic installment, it is possible to defend that this right, which is included in the gross monthly remuneration of the 2 / 3 receivable.

(response from lawyer Catarina d'Orey, of the C'O Advocacia and legal services office)

 

And what about the shift allowance can it be withdrawn?

If your work activity is carried out on a shift basis and the shift allowance corresponds to a regular and periodic benefit, which has always been paid to you on a monthly and continuous basis by your Employer, it cannot be withdrawn under the scheme. Simplified Lay Off, insofar as it integrates your normal gross remuneration.

(response from lawyer Catarina d'Orey, of the C'O Advocacia and legal services office)

Does the normal gross remuneration for this purpose include the twelfths of holiday and Christmas allowances, if any?

No, it doesn't. Payment of allowances, even if paid in twelfths, will remain the responsibility of the employer. Therefore, the concept of normal remuneration does not cover the respective proportions, in the same way that it would not cover if the respective proportional were not being paid in twelfths.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

Are holiday and Christmas allowances paid in layoffs? If they are not, do workers lose the right to them, or does the employer have to pay them later?

The normal gross remuneration, on which the reduction in simplified layoffs applies, does not include twelfths. But the employer will have to pay them later, as the layoff, despite representing a suspension of employment contracts, does not mean the loss of the right to vacation and the respective proportional. That is, when these benefits are due, the employer will still have to pay them.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

 

What is included in the normal gross remuneration, which is different from the base salary?

The concept of normal remuneration differs from basic remuneration, covering other remunerative components, such as, for example, performance subsidies, productivity subsidies. On the contrary, it will not cover, for example, the food allowance or any travel allowances. It thus covers all components, excluding the food allowance, travel allowance and possibly an attendance premium.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

 

Is food allowance not included in normal gross earnings? Why?

No. Contrary to what most people think, the food allowance is not remuneration or a remunerative component, it is intended, solely and exclusively, to cover food expenses that the worker has to be out of the house. In other words, not only is it not included in the concept of normal remuneration, but it will not be calculated for the purpose of retributive compensation whenever the layoff modality chosen has been the total suspension of work. Conversely, if the worker has chosen to reduce the normal period of work, the food allowance will be paid in proportion to the hours actually worked.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

 

In this regime, the worker receives 2/3 of the salary. How is it paid? Is it the employer who pays, or is the worker paid directly from Social Security?

As already happened in what is now called traditional layoff, in the simplified layoff it is the employer who has to proceed with the integrality of the remuneration compensation, being then reimbursed, in the respective proportion, by Social Security. I note that in case of non-compliance with this payment obligation, on the part of the employer, the consequence will be the loss of the benefits given by Social Security. Therefore, in practice, the employer will always have to proceed with the money corresponding to the compensation payments and then receive from Social Security.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

 

Does the simplified regime for reducing working hours imply any change in the remuneration defined for the layoff due to suspension of the employment contract?

The simplified layoff, moreover similar to the traditional, has two modalities. The total activity suspension modality, in which the employer pays two thirds of the salary and within those two thirds, 70% is paid by Social Security (and the remainder by the employer); and the layoff with reduced working hours. In the part of the remuneration related to this reduction, it is the employer who fully supports it, which is why, the worker with reduced hours can earn more, as long as it is understood within the minimum limit, than a worker who is just suspended.

(response from the lawyer and master in labor law, Rita Garcia Pereira)

 

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(in update)

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