Article

Probationary period in Brazil

outubro 14, 2022

A probationary period helps employers assess if a new hire fits the role and aligns with the company culture. At the same time, employees can decide if the job and workplace meet their expectations.

Keep reading to learn all about probation periods in Brazil, including rules, benefits, and terminations.

Key Takeaways

✔️ The probation period in Brazil can last up to 90 days, including extensions, as per Article 445 of the CLT.

✔️ Employers can offer contracts of 30 or 45 days, extendable once, provided the total does not exceed 90 days.

What Is a Probationary Period?

Definition

A probationary period is the initial phase of employment. During this time, both employer and employee evaluate if their working relationship is a good match. It allows employers to assess performance and employees to adapt to their new role.

Length of Probationary Period

Brazilian labor law, under Article 445 of the CLT, allows probationary periods to last up to 90 days. Employers can choose shorter durations, but the maximum limit cannot exceed 90 days, including extensions.

Article 445 of the Brazilian Labor Code (Consolidação das Leis do Trabalho – CLT),

“Fixed-term employment contracts can be established between an employer and an employee for specific purposes. Regarding probationary periods:

Probation Period Limit: The maximum duration of a probationary period is 90 days.
Extension: Probationary periods can be extended once, but the total duration (including the extension) cannot exceed 90 days.”

Common Probation Models in Brazil

30-day contract with an option to extend for another 60 days.
45-day contract with an option to extend for another 45 days.

These structures ensure a flexible but legally compliant evaluation period for employers and employees.

Extending the Probationary Period

Extensions must fall within the 90-day maximum allowed under Brazilian labor law. Employers can extend the probation only once during the period. For example, a 30-day probation can extend to 90 days but cannot go beyond this limit.

Extensions offer more time to assess an employee’s fit for the role, but they must be handled carefully to remain compliant.

Termination During the Probationary Period

In Brazil, termination during the probationary period is allowed, but the type of termination determines the obligations and compensation due to either party. Below are the most common types of termination and their implications:

Termination for Just Cause

When the employee violates company policies or contractual terms, the employer can terminate the contract for just cause.
In this case, the employee is entitled only to the salary balance for the days worked. No additional benefits like vacation pay, the 13th salary, or FGTS withdrawal apply.

Termination Without Just Cause

If the employer decides to terminate the employee without just cause, the following are due:

Salary balance for days worked.
Proportional 13th salary.
Proportional vacation pay, including the one-third additional allowance.
40% FGTS fine on the balance.
Compensation for early termination, equal to 50% of the remaining days in the contract.
Example: If an employee is dismissed on the 44th day of a 90-day probationary period, the employer must pay compensation equivalent to half the wages for the remaining 46 days.

Voluntary Resignation by the Employee

If the employee resigns before the end of the probationary period:
- They may be required to compensate the employer with 50% of the remaining days’ wages.
- They are still entitled to:
  - Salary balance.
  - Proportional 13th salary.
  - Proportional vacation pay, including the one-third additional allowance.
  - FGTS contributions remain, but withdrawal rights do not apply.
If the employee resigns after completing the probationary period, no penalties apply.

Frequently Asked Questions (FAQ)

Can Employees Be Terminated Before the End of the Probationary Period?

Yes, employers can terminate contracts before the probation period ends. However, termination without just cause requires compensatory payments to the employee.

Is There a Penalty for Early Termination?

Yes, penalties apply in cases of early termination:

Employer-initiated termination without just cause: The employer owes 50% of the remaining wages in the contract and other benefits.
Employee-initiated resignation: The employee must compensate the employer with up to 50% of the wages for the remaining period.

Are Termination Benefits Paid Immediately?

If the employer initiates the termination, payments must be made on the next business day.
If the employee resigns, payments must be completed within 10 business days.

Get Started with an Employer of Record in Brazil

Hiring in Brazil can seem complex, but an Employer of Record (EOR) simplifies the process. Europortage handles employment contracts, payroll, benefits, and compliance, letting you focus on growth.

Ready to expand your team in Brazil? Contact us today to learn more about how we can support your business expansion.