Intermittent Work: Rights and Duties Under Brazil’s CLT

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

Intermittent work was introduced by the 2017 Labor Reform as a new type of employment contract. Services are performed in alternating periods of activity and inactivity, with proportional rights guaranteed by the CLT (Brazil’s Consolidated Labor Laws).

What an intermittent contract is and how it works

The intermittent employment contract is provided for in Art. 443, paragraph 3, of the CLT. It is defined by the performance of services in alternating periods of activity and inactivity, measured in hours, days, or months. Unlike a traditional contract, the employee has no fixed schedule and is called in according to the employer’s needs.

The employer must give at least three consecutive days’ notice of a call-in, using any effective means of communication (Art. 452-A, paragraph 1, of the CLT). The employee has one business day to respond, and silence is treated as a refusal, without amounting to insubordination or neglect of duty.

Note that an intermittent contract must be in writing and must state the hourly rate. That rate cannot be lower than the hourly value of the minimum wage or than the pay of other employees who perform the same role at the company, whether under an intermittent contract or not.

Rights of the intermittent worker

At the end of each period of service, the intermittent employee is entitled to receive the following amounts immediately: pay for the work performed, proportional vacation pay plus one-third, proportional 13th-month salary, paid weekly rest, and any statutory premiums, as provided in Art. 452-A, paragraph 6, of the CLT.

The employer must make FGTS (Brazil’s Severance Indemnity Fund) deposits on the amounts paid and give the employee proof of the deposit. Social security contributions are also due, and the employee must make up the difference if monthly pay falls below the minimum wage, so that the period counts toward social security.

The employer must make FGTS deposits on the amounts paid and give the employee proof of the deposit.

The intermittent worker is entitled to vacation every 12 months, during which the same employer may not call the worker in for service. This vacation period is paid differently: proportional vacation pay is already paid at the end of each assignment, so taking the time off carries no additional pay.

Duties of the employee and the employer under this arrangement

The employer must record the worker in the CTPS (Brazil’s Work and Social Security Card), comply with workplace health and safety rules, and pay everything owed at the end of each assignment. The termination of the contract follows specific rules for intermittent work: the employee is entitled to half of the paid-out notice period and half of the FGTS penalty, as well as withdrawal of up to 80% of the FGTS balance.

For their part, employees must honor the call-ins they accept and perform their services with the same diligence expected of any worker. Refusing a call-in does not count as misconduct, but it may be taken into account when evaluating the contract if the refusals are systematic and repeated.

Note that many companies use the intermittent contract improperly, as a way to disguise traditional employment relationships. Where there is regularity, continuous subordination, and a predetermined schedule, a conventional employment relationship may be recognized.

Controversial issues and recent case law

In 2023, in its judgment of ADIs (direct actions of unconstitutionality) 5826, 5829, and 6154, the STF (Brazil’s Supreme Federal Court) upheld the constitutionality of intermittent work, rejecting claims that it makes work precarious and violates workers’ dignity. The decision confirmed the validity of this type of contract, although it noted the need for protection against abuse.

Among the issues still under debate are intermittent workers’ access to unemployment insurance and a guaranteed minimum income during periods of inactivity. Current law does not provide unemployment insurance for this type of contract, which has drawn criticism from some labor law scholars. Note that an intermittent worker may hold several employment relationships at once with different employers, which expands income opportunities but requires attention to social security obligations when combined earnings fall short of the monthly minimum wage.

Social security obligations of the intermittent worker

One of the most important aspects of intermittent work is social security. When a worker’s monthly pay falls below the minimum wage, that month is not automatically counted toward the minimum contribution requirement or contribution time with the INSS (Brazil’s National Social Security Institute). For the month to count, the employee must make up the contribution until it reaches the minimum amount, as required by the applicable social security rules.

This top-up is made with a Social Security payment slip (GPS), using the appropriate payment code, and must be paid by the 15th day of the month following the month of reference. In practice, many intermittent workers are unaware of this obligation and build up periods with no social security coverage. That can jeopardize access to benefits such as retirement, temporary disability benefit, and maternity pay. Failing to make the minimum monthly contribution also affects your insured status, and you may lose INSS coverage in case of illness or accident.

Another point that deserves attention is that an intermittent worker may hold several employment relationships at once with different employers. In that situation, the pay from all contracts is added together to determine whether the monthly total reaches the minimum contribution base. When the combined pay exceeds the minimum wage, no top-up is needed. Even so, each employer must pay the employer contribution on the amounts it pays individually, and the worker should monitor the social security statement (CNIS, the National Social Information Registry) to confirm that every payment is being recorded correctly.

Frequently Asked Questions

Can an intermittent worker turn down a call-in without penalty?

Yes. Art. 452-A, paragraph 3, of the CLT provides that refusing an offer does not undo the subordination relationship and does not amount to insubordination. The worker is entirely free to accept or refuse each call-in, and the employer may not impose any disciplinary sanction for doing so.

Is an intermittent employee entitled to FGTS and the 13th-month salary?

Yes. FGTS is deposited on each payment made, and the proportional 13th-month salary (Brazil’s mandatory year-end bonus) is paid at the end of each period of service. These amounts are calculated in proportion to the time worked in each assignment, giving the employee the same basic rights as other workers.

How does termination of an intermittent employment contract work?

Terminating an intermittent contract entitles the employee to half of the paid-out notice period and half of the termination penalty on the FGTS balance, as well as withdrawal of up to 80% of the fund. Proportional vacation pay and the proportional 13th-month salary are already paid at the end of each assignment, so they are not owed again at termination.

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