Experience contract it is a type of work whose deadline is determined. Its objective is to assess whether the employee is able to perform the function for which he was hired.
The hiring of a new employee requires a series of adaptations, both for the company and for itself. In addition to bureaucratic changes, there are behavioral changes to welcome the new member into the team.
Want to understand how the Experience Contract works? In this post, we show what the CLT says about it. Check out!
What is Experience Contract?
When a new employee is admitted, it is customary to place it in a modality known as the Experience Contract.
Supported by CLT laws, it serves as a test period for the employer to assess the behavior and the Skills of the new employee. In addition, it demonstrates to the newly hired person whether that job is really in line with his expectations and goals.
Although it is used as an instrument to alleviate the bureaucratic burden of hiring a CLT, the experience contract requires some points of attention. In this post, we will explore them one by one!
This type of labor agreement is provided for in the CLT as a temporary contract. Its main purpose is to test the professional's aptitude for the position for which he was hired.
It also serves as a guarantee for the worker to assess whether that work environment meets his expectations in relation to what he is looking for in a job.
When the service contract ends experience, if none of the parties has an interest in carrying out the termination, the employee is already part of the company's staff.
Why is there an experience contract?
As we said earlier, the experience contract serves as a pre-assessment for both parties involved: employee and employer.
For the employee, the trial period is a way of analyzing whether the company offers good working conditions, whether the environment is favorable and whether the superior will contribute to its development. That is, if you will have good prospects for your career.
For the employer, this agreement exists so that he can evaluate performance of the new employee and check if you are able to occupy a definitive position in the company.
One of the advantages of adopting the experience contract within the company is that, when the employee is dismissed in this modality, there is no indemnity of the fine and 40% on the FGTS.
How long is the trial contract valid?
The document may have duration up to 90 days – as stated in the article 445, single paragraph of the CLT.
If the first agreement has a shorter duration, it can be extended until completing the days limit stipulated by law, but only once. Likewise, it can be terminated at any time before it ends.
Heads up: the term of the trial contract is stipulated in days, not months. Thus, it is worth noting that some months have 30 days, while others have 31 – in addition to the month of February, which has 28 days and 29, in leap years. Hence the count in days.
In general, it is not necessary to take any action if both parties have decided to pursue the employment relationship. Thus, the contract automatically becomes valid for an indefinite period. Subsequent rights and duties follow the standard CLT rules.
Is there an extension of the contract?
THE contract it may be extended only once, as long as it does not exceed the 90-day period.
So, if the company and the employee agreed on a 30-day plan, it can be extended for another 60 days. If the agreement is 45 days, it can be extended for another 45 days.
If the company does not comply with this standard, the contract will be considered for an indefinite period, creating other obligations for the organization.
Is there a deadline for agreeing a new experiment contract?
After the end of the contract, the same company may agree a new one only after a minimum period of six months, according to article 452 of the CLT.
According to the law, the employee will not be able to exercise the same previous function. The new experience plan should be for hiring in another position.
If the company does not comply with the minimum period of 6 months to enter into a new contract, it is considered to be an indefinite contract.
What are the rights of the worker?
Every employee on a trial contract has rights under the law, in addition to the additional rights under the law or collective agreement.
Between the benefits guaranteed are:
How is this recorded in the work card?
THE article 29 of the CLT points out that the employer has up to 48 hours to return the completed employee's CTPS.
The experience contract is no exception: this agreement must be registered, and in no way does a verbal agreement have legal validity.
Thus, filling in the CTPS should be done as follows:
- go to the employment contract page;
- write down the information regarding the admission the employee;
- go to the general notes page and write the experience contract, as in the example: “You were admitted on a trial basis for 45 days, and can be extended for another 45 days, according to the legislation in force.”
Filling in is simple, isn't it? However, the main focus is on issues related to the termination of the experience contract. So, let's go to them!
How to proceed with the termination?
If the termination if requested by the employee at the end or during the term of the contract, the following rights are due:
The same rights must be paid if the company decides to terminate the employment relationship at the end of the first period, or at the time of the extension of the experience contract. There is even no need to early warning.
Now, if the employer decides to terminate before the end of the agreement, the scenario changes a lot. Here are the rights to be paid:
- salary for the period worked until termination;
- family salary;
- vacation proportional to the period worked + 1/3 of that amount;
- 13th salary, proportional to the period worked;
- FGTS, with the right to withdraw;
- unemployment insurance according to the rules of the law;
- 40% fine on FGTS;
- 50% indemnity on the days remaining until the end of the contract;
- indemnity of 01 salary, if the termination occurs up to 30 days before the base date of salary adjustment for the category;
- prior notice, depending on the conditions of the experiment contract.
With just cause
- salary for the period worked until termination;
- family salary;
- FGTS, without the right to withdraw.
There are also conditions – known as provisional stabilities – which are currently taken into account by employers during the contract.
Until recently, such situations were disregarded, since the agreement has a closing date for the contract. However, this has been gradually left in the past.
Below we list some of the situations of provisional stability that can be recognized:
The understanding of this type of provisional stability is found in the article 118 gives Law No. 8,213 / 91, which does not set restrictions or distinctions regarding the signed labor agreement.
The jurisprudence understands that the measure is a protection to the unborn child, according to Precedent 244, item III, of the TST:
“The pregnant employee is entitled to the provisional stability provided for in art. 10, item II, paragraph b, of the Transitional Constitutional Provisions Act, even in the event of admission under a fixed-term contract. ”
What are the main employee doubts about this?
The trial contract, despite its short duration, is governed by specific rules. See the most common questions answered below:
Which 3 months of work entitles you to benefits?
After the end of the experience contract, if the employee's activities are closed within the specified period, the worker must receive all benefits provided for by law.
Among them are: salary balance, 13th salary, vacation plus 1/3 and the possibility to withdraw FGTS deposits.
As it is a fixed-term contract, there will be no prior notice or compensation for the 40% of FGTS.
I was fired before 45 days of experience, what should I do?
In the event of a breach of contract by either party, the party who broke the contract must indemnify the injured party.
In this case, as the breach was made by the employer, the 45-day trial contract termination calculation. In other words, the employee will be entitled to all amounts of termination, in addition to a 40% fine on the FGTS balance.
Here the same unfair dismissal rules as provided for in the CLT are applied.
My experience contract is over and I'm still working, what can happen?
The experience contract is a fixed-term employment contract. However, if the contract period ends and the worker continues to work, it becomes an indefinite contract.
From this moment, the employee becomes an effective employee, with no deadline for the termination of his contract.
Does the experience contract have prior notice?
Generally speaking, no. If there is a clause stating that the two parties can terminate the agreement at the time they want (according to article 481 of the CLT), the company must pay prior notice to the employee, if he is dismissed. The advance notice corresponds to 30 working days.
In case of dismissal for just cause, he loses all these rights, receiving only the salary for the period he worked. Here the same principles apply that govern a contract for an indefinite period.
What changes with labor reform?
Now, the term of this temporary work agreement can exceed, at most, a 90-day extension to the maximum – and initial – 180-day term.
It is worth emphasizing that all the rules mentioned above must be periodically reviewed, including those related to provisional stability (work accident or of pregnancy employee in an experience contract).
If the employee is admitted pregnant, or during the period of the experience contract become pregnant, her stability will be ensured for up to five months after delivery.
In such cases, it should be noted that this agreement must be continued and can only be terminated after the end of the stability period.
The company also cannot accept termination request from the employee in such cases, it is necessary for him to contact the union to terminate his contract during the period of stability.
What is the difference between a trial contract and a temporary contract?
As we have seen, the experience contract is a fixed-term employment agreement, which is governed by CLT. At the end of the term, the parties decide whether to maintain the employment relationship.
The temporary contract, on the other hand, is a combined agreement between the company and the service provider. It is used when hiring workers to replace regular staff, or when there is extra work.
Each modality has its objective and is governed by separate laws. Companies must be aware of the legal rules that govern both types of contracts, as this way they avoid penalties and headaches.
We recommend that the termination of the experiment contract is always done at the end of one of the periods, avoiding complementary expenses for your company.
So, were we able to answer all your doubts about the experience contract? If you still have questions, put a comment below that we will respond promptly!