Experience contract is a type of employment contract for a specified period. Its objective is to assess whether the employee is able to perform the function for which he was hired.
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The hiring of a new employee requires a series of adaptations, both for the company and for the employee. In addition to the bureaucratic changes, there are the behavioral changes required to welcome the new member to the team.
When a new employee is hired , it is customary for him to initially enter into a modality known as the Experience Contract .
Supported by the CLT laws , it serves as a period for the employer to assess the behavior and skills of this new employee. In addition, it shows the newly hired person whether that job is in accordance with his expectations and goals .
However, although it is used as an instrument to relieve the bureaucratic burden of a CLT contract – which does not have an established contract time -, the CLT experience contract requires some points of attention. And, in this post, we will explore them, one by one. Check out!
What is experience contract?
The experience contract is a type of temporary labor agreement provided for in the CLT . Its main purpose is to test the employee’s suitability 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 looks for in a job.
When the experience contract expires , if none of the parties are interested in terminating the contract, the employee will become 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, whether its superior will contribute to its development. That is, if he will have good prospects for his career.
For the employer, this agreement exists so that he can evaluate the performance of the new employee and check if he is able to occupy a definitive position in the company.
One of the advantages of adopting the experience contract for the company is that in this modality there is no indemnity of the fine and 40% on the FGTS , at the moment of the employee’s termination for the termination of the contract.
How long is the trial contract valid?
The document can last up to 90 days – as stated in 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 . In the same way that it can be terminated at any time before its termination.
Attention: the term of the experience 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 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.
The contract automatically becomes valid indefinitely, and the subsequent rights and duties follow the standard rules of CLT at the end of the contract.
Is there an extension of the experience contract?
The contract may be extended only once, as long as it does not exceed the 90-day period .
So if the company and the employee agreed to a 30-day contract, it can be extended for another 60 days . If the contract is for 45 days, it can be extended for another 45 days .
If the company does not comply with this standard, the contract will be considered an indefinite contract , creating other obligations for the company.
Is there a deadline for agreeing a new experiment contract?
After the end of the contract , the same company may only agree on a new one after a minimum period of six months, according to article 452 of the CLT.
According to the law, the employee cannot perform the same function as before. In the new experience contract, he must be hired for another position.
If the company does not comply with the minimum period of 6 months to enter into a new contract, it will be considered as an indefinite contract .
What are the rights of the worker on a trial contract?
Every employee on a trial contract has rights under the law. In addition to the additional rights provided for by law or collective agreement.
Among the guaranteed benefits are:
- family allowance;
- night additional;
- commissions;
- gratuities;
- overtime;
- dangerousness;
- unsanitary, among others.
How is the contract registered in the employment card?
The Article 29 of the Labor Code emphasizes that the employer has a period of up to 4 8 hours to return the CTPS employee duly completed.
The experience contract is no exception: this agreement must be recorded, and in no way is a verbal agreement legally valid.
Thus, filling in the CTPS must be done as follows:
- go to the employment contract page;
- write down the information regarding the employee’s admission ;
- 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 is simple, isn’t it? But the biggest attention is on issues related to the termination of the experience contract, let’s go to them!
How to proceed with the termination of the trial contract?
If termination is requested by the employee at the end or during the term of the contract, the following rights are due:
- wage balance ;
- family salary ;
- vacation proportional to the days worked + 1/3 of that amount;
- 13th salary , proportional to the months worked;
- FGTS , with the right to withdraw.
The same rights must be paid if the company decides to terminate the employment relationship at the end of the first period or when the trial contract is extended. There is even no need for prior notice .
Now, if the employer decides to make the Termination ã the before contract end, the scenery changes dramatically. Here are the rights to be paid:
Without cause
- 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% compensation on the days remaining until the end of the contract;
- indemnification of 1 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 temporary stabilities – that are currently taken into account by employers during the Experience Contract .
Until recently, such situations were disregarded, since the agreement has a closing date for the contract, but this has been gradually left in the past.
Below, some of the provisional stability situations that can be recognized throughout the experience contract:
Work accident
The understanding of this type of provisional stability is found in Article 118 of Law No. 8,213 / 91 , which does not set restrictions or distinctions regarding the labor agreement signed.
Pregnant
The jurisprudence understands, here, 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 employee’s main doubts about this contract?
The trial contract , despite its short duration, is governed by specific rules. See the main doubts answered on the subject below:
1. What benefits do 3 months of work entitle?
After the end of the experience contract , if the employee’s activities are closed within the specified period, the employee must receive all the benefits provided 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 notice, nor compensation for the 40% of FGTS.
2. 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 termination calculation of the 45-day experience contract must be made . In other words, the employee will be entitled to all amounts of termination plus a 40% fine on the FGTS balance.
Here, the same unfair dismissal rules as provided for in the CLT apply.
3. 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.
4. Does the experience contract have prior notice?
In general, no. If there is a clause saying that the two parties can terminate the agreement at any time (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 that govern an indefinite term contract apply.
What changes with labor reform?
There was no change in the labor reform experience contract . In turn, it is worth mentioning the change registered in the temporary employment contract , only.
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 noting, however, that all the rules mentioned above must be periodically revised – including those related to provisional stability, as is the case of an eventual work accident or pregnancy of the employee under an experience contract.
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 a termination request from the employee in these cases, and the employee must seek the union if he wants to terminate his contract during the stability period.
Therefore, we recommend that the termination of the experience contract is always made at the end of one of the periods, thus avoiding additional expenses.
So, we managed to answer all your questions about the experience contract ? If you still have something to clarify, comment in the field below and we will respond promptly.
