Probationary Employment Contracts in Brazil: Time Limits, Renewal, and Your Rights at Termination

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

A probationary employment contract (contrato de experiência) lets employer and worker evaluate each other before committing to an open-ended employment relationship. But this type of contract has a short term, strict renewal rules, and its own consequences when it is ended early. Knowing these limits helps you avoid financial losses and keeps the Labor Courts from invalidating the arrangement.

What a probationary contract is and what it is for

The probationary contract is a type of fixed-term employment contract provided for in Article 443 of Brazil’s Consolidation of Labor Laws. Its purpose is to let both parties test the relationship: the employer assesses the worker’s technical ability and conduct, and the employee checks whether the working conditions, the environment, and the job meet his or her expectations.

Because it has a fixed end date, it is an exception to the general rule. In Brazilian labor law, the standard arrangement is the open-ended contract, one with no end date. A probationary contract is justified only when there is a real need for this mutual evaluation at the start of the relationship.

One requirement often goes unnoticed: a probationary contract must be in writing. Although the law allows oral contracts in ordinary situations, the fixed-term nature of a probationary arrangement depends on clear proof of the agreed term. Without a signed document and an entry in the work card (carteira de trabalho), the worker can argue that the contract was always open-ended, with all the protections that entails.

Maximum term and renewal rules

The most sensitive point of this type of contract is its duration. A probationary contract cannot exceed ninety days, under the sole paragraph of Article 445 of the CLT (Brazil’s Consolidation of Labor Laws). This cap is absolute: any period above ninety days defeats the probationary character and turns the relationship into an open-ended contract.

Within that limit, the contract can be extended only once. An employer may, for example, set the initial probationary period at forty-five days and then extend it by another forty-five, for a total of the ninety days allowed. It is equally valid to hire for thirty days and extend for sixty, as long as the total stays within the legal cap.

The most common mistake, and the most expensive, involves a second extension. Article 451 of the CLT is clear: a fixed-term contract that is extended more than once becomes an open-ended contract. In other words, even if the combined periods total less than ninety days, a second extension is enough to convert the relationship. Three successive thirty-day contracts, therefore, do not make up a valid probationary period.

There is another consequence when the worker keeps working after the term ends without the contract being formally closed. In that case, the contract is understood to have been extended automatically and to now run for an indefinite term, with all the effects that follow from that change.

Keep in mind, too, that the same person cannot be put on a new probationary contract for the same job at the same company within a short interval. If the worker has already shown his or her ability in an earlier period, there is nothing left to test, and repeating the arrangement is treated as a fraud against the purpose of the law.

A second extension, even within the ninety days, converts the probationary period into an open-ended employment relationship.

For this reason, an employer cannot leave calendar control to chance. Recording the start date, the end date, and the date of the single extension allowed is the safest way to keep the contract within the legal framework and preserve the advantages this type of contract offers.

What is owed when the contract ends early

The financial consequences depend on how the contract ends. If the probationary contract runs to the agreed date, the termination happens naturally. In that case, the worker receives the salary balance for days worked, the proportional thirteenth-month salary, proportional vacation pay plus one third, and the right to withdraw the FGTS (Brazil’s employee severance guarantee fund). There is no advance notice and no forty percent penalty on the FGTS balance, because there was no dismissal without cause before the end of the term.

The situation changes when one party ends the contract before the agreed date without just cause. If the employer dismisses the worker early, Article 479 of the CLT applies: the employer must pay, as compensation, half of the pay that would have been owed through the end of the contract. An employee dismissed with sixty days still remaining, for example, is entitled to half of the amount corresponding to those sixty days, in addition to the usual severance payments.

The reverse happens when the worker is the one who asks to leave before the term ends. Article 480 of the CLT provides that, in that case, the employee is liable for the losses caused by the early break, in an amount that cannot exceed what he or she would receive under Article 479. In practice, the compensation owed by the worker is usually settled by agreement or depends on the company proving its loss.

There is one important variation. Many contracts include what is called an assurance clause for the reciprocal right of early termination (cláusula assecuratória do direito recíproco de rescisão antecipada). When that clause exists and either party uses it to end the contract before the term, the compensation under Articles 479 and 480 no longer applies. Instead, the rules for open-ended contracts apply, including advance notice and the forty percent penalty on the FGTS balance. The presence or absence of this clause greatly changes the final amount of the termination payment.

Job protections that apply to probationary contracts also deserve attention. A pregnant worker is entitled to temporary job security even under this type of contract, according to settled case law. An employee who suffers a workplace accident during the contract also gains protection against dismissal. In these situations, the mere end of the term does not allow termination without consequences.

How to avoid losing the contract’s probationary status

The probationary status is lost when the contract ceases to be valid as a fixed-term arrangement and is treated as an ordinary open-ended contract. The effect is significant: the company loses the advantages of this type of contract and becomes liable for advance notice, the FGTS penalty, and the other payments that come with dismissal without cause.

Several oversights lead to this result. The most frequent causes are going beyond ninety days, extending the contract more than once, letting the worker continue after the term ends without formalizing it, hiring without a written document, or repeating the probationary period for someone who has already held the same job. Any one of them, on its own, is enough to convert the contract.

For workers, the focus should be on the work card and the signed document. Checking that the term recorded matches what was agreed, keeping a copy of the contract, and watching for more than one extension are simple steps that protect your rights. When an early termination occurs, checking that the compensation was calculated correctly is an essential step.

For employers, careful documentation is the best defense. Putting the agreement in writing, respecting the ninety-day cap, limiting the contract to a single extension, and deciding clearly on the assurance clause all reduce the risk of labor liabilities and give the relationship a secure footing from day one.

Frequently Asked Questions

Can a probationary contract be renewed beyond ninety days?

No. The maximum term is ninety days, counting the initial period and any extension together. Any time beyond that limit converts the relationship into an open-ended contract. It is also not possible to chain new probationary contracts for the same job at the same company, because this is treated as a fraud against the legal purpose of this type of contract.

How many times can a probationary contract be extended?

Only once, and only if the total does not exceed ninety days. A second extension, even within that cap, automatically turns the contract into an open-ended one under Article 451 of the CLT. That is why it is common to set the probationary period in two parts, such as forty-five plus forty-five days.

What does the worker receive if dismissed before the contract ends?

In addition to the salary balance, the proportional thirteenth-month salary, proportional vacation pay with one third, and the right to withdraw the FGTS, an employee dismissed early without just cause is entitled to the compensation under Article 479, equal to half of the pay for the days remaining until the end of the term. If the contract has an assurance clause for reciprocal termination and it is invoked, the rules for ordinary dismissal apply, with advance notice and the forty percent penalty on the FGTS balance.

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