Incorporation of the Bank Employee’s Position Bonus and the 2017 Labor Reform

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

If you work at a bank and have held a position of trust for years, you have probably wondered whether your position bonus will stay in your paycheck if you return to your original job. The answer changed with the 2017 Labor Reform, and the date on which your situation became settled makes all the difference. We will explain in practical terms when the bonus becomes part of your salary, when it no longer does, and why this also affects the amount of your future retirement benefit.

What the position bonus is and why it used to become part of your salary

The position bonus (gratificação de função) is the amount paid to an employee who takes on a role with greater responsibility, such as manager, coordinator, or teller with special fiduciary duties. In the banking sector, it makes up a significant share of pay and is often what turns a base salary into a truly attractive paycheck.

For decades, the Labor Courts held that when an employee had held a bonus-paying position for a long time and was then returned to the former job without a legitimate reason, removing that payment undermined the financial stability the employee had built over the years. This reasoning rested on the principle that wages cannot be reduced and on the idea that regular, long-term payment creates a legitimate expectation.

That is the background to Precedent Summary 372 of the TST (Brazil’s Superior Labor Court). It established that if an employee held the position for ten years or more and the payment was stopped without a legitimate reason, the employee kept the bonus amount even after returning to the original post. The payment became part of the employment contract.

What changed with the 2017 Labor Reform

Law 13.467/2017, which took effect on November 11, 2017, profoundly changed this picture. The legislature added paragraph 2 to Article 468 of the CLT (Brazil’s Consolidation of Labor Laws) with a direct rule: removing an employee from a position of trust, with or without a legitimate reason, does not entitle the employee to keep the corresponding payment, and this does not count as a harmful unilateral change to the contract.

In practice, the text set aside the logic of Precedent Summary 372. It no longer matters whether the bank employee held the position for two, five, or twenty years: after the Reform, a return to the original post can come with the loss of the bonus, and the law expressly states that this is not an unlawful salary reduction.

There is, however, a point many people forget. The new law does not erase what was already settled in the past. Situations in which the right to incorporation had already been completed by November 11, 2017 remain protected by the doctrine of vested rights (direito adquirido), provided for in Article 5, item XXXVI, of the Constitution. The cutoff date is therefore decisive.

That is why individual review of your work history has become so important: two colleagues at the same bank can end up with opposite outcomes solely because of the date.

The cutoff date: why November 11, 2017 is the dividing line

To know which rule applies to your case, you need to identify when the requirements for incorporation were met. If the bank employee had already completed ten years in the position and the bonus was removed without a legitimate reason before the Reform took effect, the right was already part of the employee’s legal assets, and the later law does not reach it.

The higher courts have recognized this distinction based on timing. The position that has taken hold is not that the Reform applies retroactively, but that situations already settled must be respected. That is why individual review of your work history has become so important: two colleagues at the same bank can end up with opposite outcomes solely because of the date.

Keep carefully any documents that prove how long you held the position, such as paystubs, internal appointment and removal orders, and payroll system records. They are the evidence that the right was completed (or not) before the cutoff date.

The link to INSS (Brazil’s National Social Security Institute): how this affects your retirement

Here we come to an effect that is rarely mentioned but weighs on your finances over the long term. The nature of the position bonus influences the contribution salary, which is the base on which INSS calculates the amount of your benefit.

When the bonus is salary in nature and is regularly part of your pay, it counts toward the contribution salary. This means that in situations settled before the Reform, where the bonus became part of the salary, the amount paid into INSS tends to be higher, and the average that determines the initial monthly benefit amount also rises.

In situations governed by the new law, on the other hand, where the Reform rules out incorporation and the bonus can be removed when the employee returns to the original job, this effect on social security ends from the moment of removal. Without the bonus in your pay, there is no corresponding increase in the contribution salary, and your future retirement benefit may end up lower than you expected.

What to do in practice if you are a bank employee in this situation

The first step is to map out your timeline. Write down when you took on the bonus-paying position, how long you held it, and whether the bonus was removed at any point. Compare those dates with the cutoff of November 11, 2017.

Next, gather your documentation. Paystubs for the entire period, internal notices of promotion and reversion, collective bargaining agreements for the banking sector, and your CNIS (Brazil’s National Social Information Registry) statement form the core of your evidence. The more complete the evidence, the more reliable the assessment of whether a lawsuit is viable.

If incorporation became settled before the Reform and the bank removed the bonus afterward, there is room to argue in court for keeping the amount on the basis of vested rights. If the situation arose after the cutoff, the focus shifts: instead of insisting on incorporation, it is worth checking whether there was a specific defect in the removal, such as a position that never actually involved a relationship of trust from the start.

In any scenario, assess the social security impact together with the labor impact. A well-thought-out strategy considers not only today’s salary but also tomorrow’s retirement benefit. Seeking specialized advice before making any decision helps avoid losses that would only show up years later.

Frequently Asked Questions

I held the bonus-paying position for twelve years and the bank removed the bonus in 2019. Do I have the right to keep it?

It depends on when the requirements were met. If you had already completed ten years in the position and met all the conditions for incorporation before November 11, 2017, you can argue that the right was already vested, even though the bonus was removed in 2019. If the right would only have been completed after the cutoff date, paragraph 2 of Article 468 of the CLT applies, and it allows the removal. The exact dates in your work history determine the answer.

Does losing the bonus reduce the amount of my retirement benefit?

It can. While the bonus was paid as salary, it counted toward the contribution salary and helped form the average that INSS uses in its calculation. From the moment the bonus is removed and no longer forms part of your pay, that effect ends, and the contributions paid on your behalf become smaller. That is why it is important to check in your CNIS statement whether the amounts were correctly recorded during the period when you held the position.

Does the Labor Reform apply to contracts that began before 2017?

The Reform applies to events occurring from November 11, 2017 onward, including within older contracts that were still in effect. What it does not do is erase rights that had already become settled before that date. So a contract signed in 2005 follows the new rule for events after the cutoff, but it preserves situations that were already vested rights up to that point.

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.