01/02/2021

By Israel Cruz

The Special Secretariat for Social Security and Labor, an agency of the Ministry of Economy, published Ordinance 396 on January 11, 2021, which aimed to establish situations incompatible with the double visit criterion.

The double visit criterion is aimed at Microenterprises and Small Businesses, and is provided for in §1 of article 5 of Complementary Law 123/2006, which established the National Statute of Microenterprises and Small Businesses.

In truth, this criterion refers to a real benefit, as it determines prior guidance by the public authorities to Microenterprises and Small Businesses before the application of penalties.

It is worth noting that the aforementioned §1 brought in its scope some exceptions for the application of the criterion, which are when an infraction is found due to lack of employee registration or annotation in the Employment and Social Security Card - CTPS, or, even, in the event of recidivism, fraud, resistance or obstruction to inspection.

However, the Ministry of Economy, through its supervisory bodies, identified situations in which this benefit should not be granted, namely:

1) Situation analogous to slavery or child labor;
2) Delay in salary payment;
3) Work accident in events where there are consequences;
4) Serious risks to the health of the worker; and
5) Failure to comply with embargoes or interdiction.

Therefore, if the above situations are verified, the company may lose its benefit of being guided and suffer the application of penalties immediately.