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Court Recognizes Fraud in Pejotization: Company That Hires Worker as Self-Employed Can Be Condemned to Pay Retroactive FGTS, Vacation Pay, and 13th Salary.
In recent years, the practice of hiring workers as legal entities (PJ) instead of signing a work card has grown in Brazil. This model, known as pejotization, promises to reduce costs for companies and, in some cases, increase the net income of the professional. However, when the relationship conceals a typical employment bond, Labor Court has been firm: it recognizes the contract as fraudulent and condemns the company to pay all rights provided for in the CLT.
The Article 9 of the Consolidation of Labor Laws (CLT) declares null and void any acts carried out with the intention of defrauding labor rights. Thus, if the worker hired as PJ performs duties with subordination, personal involvement, habituality, and remuneration, the Court may convert the relationship into an employment bond, ensuring rights such as FGTS, vacation pay, 13th salary, notice period, and overtime.
What Characterizes Fraud in Pejotization
The Court considers pejotization illicit when the hiring model masks a relationship that, in practice, is that of formal employment. Some clear signs of fraud include:
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- Subordination: the worker follows direct orders, adheres to schedules, and reports to hierarchical superiors;
- Personal Involvement: the function can only be performed by them, with no possibility of substitution by another professional;
- Habituality: the work is continuous, not occasional;
- Remuneration: there is fixed and predictable compensation, similar to a salary.
When these elements are present, it does not matter whether there is a service provision contract through a legal entity: the bond is recognized as labor-related.
Recent Jurisprudence of the Labor Court
The Superior Labor Court (TST) has already established in various rulings that irregular pejotization nullifies the civil contract and obliges the company to pay all labor rights.
In 2023, the 2nd Panel of the TST analyzed the case of an engineer hired as PJ, who worked regular hours and received a monthly salary. The court recognized the fraud and ordered the payment of FGTS, proportional vacation pay, 13th salary, and severance penalty.
Another ruling, at the 2nd Region Labor Court (SP), involved a technology company that hired programmers through legal entities.
The Court recognized that the professionals’ routine was identical to that of formal employees and condemned the company to pay all retroactive labor charges.
Financial Impact of Condemnations on Companies
The recognition of the employment bond can lead to multimillion-dollar penalties, especially when pejotization lasts for years. The company becomes obligated to:
- Deposit the FGTS for the entire working period;
- Pay overdue and proportional vacation pay, plus 1/3;
- Clear retroactive 13th salaries;
- Cover severance payments, such as notice period and a 40% penalty on the FGTS;
- Collect overdue social security contributions.
In addition, there is a risk of tax audits by the Federal Revenue and Social Security, which can charge the due social charges on amounts paid as “fees”.
The Role of the STF in the Discussion on Pejotization
In 2020, the Supreme Federal Court (STF) analyzed the so-called “lawful pejotization” in intellectual and specialized activities, such as medicine and law.
The STF understood that hiring as a legal entity is valid when there is no typical employment relationship, meaning when the professional maintains autonomy, assumes risks, and can be substituted by another.
However, the same ruling made it clear that fraud is not permitted: when the elements of the CLT are present, the bond must be recognized. The decision reinforced legal certainty, differentiating legitimate outsourcing from irregular pejotization.
Experts Warn of the Risks of the Practice
According to labor judge Marcos Scalercio, “pejotization is an attempt to reduce costs that often masks an employment relationship. When this occurs, the Court is relentless and condemns the company to bear all rights.”
Labor attorney Camila Aith adds: “companies that insist on this model run a high risk. The labor liability can be much greater than the immediate savings obtained through pejotization.”
The message from the Court is clear: hiring through PJ is only valid when there is true autonomy and absence of the typical elements of the employment relationship. Otherwise, it is a labor fraud, with inevitable condemnation for the company.
The phenomenon of pejotization, common in sectors such as technology, health, and communication, needs to be treated with caution. The attempt to reduce labor charges can turn into a gigantic liability, capable of compromising the financial health of the organization.
Eu trabalhei 12 anos em uma empresa que faz a mesma coisa! Sempre dando desculpa para não assinar a carteira e eu precisando trabalhar pelo dinheiro para sustentar a família!!! Sai sem nada!!! Sempre trabalhei todo certinho! E no final o chefe falou que não me devia nada!!!! Que injustica!!! Ele te ameaçao!!! Te obrigam a trabalhar pelo salário e vc sem saída faz!!!!
44988116599 chama meu marido
12 anos e não conseguiu arrumar outro??? Hoje em dia quando vc abre vaga as pessoas já vem falando que querem ser PJ, aí quem fica na mão de quem?? Isso pelo menos na área da saúde.
Matéria tosca sem amparo e tendenciosa. Veja às últimas 50 decisões do STF sobre o tema.
O stf não presta para nada!!!!! Os caras não são juízes concursados!!! Não entendem nada de justiça de trabalho