Precedente do TST muda tudo na ações discutindo FGTS! Veja como garantir seus honorários.

Summary

In this video, attorney Renato Brito Baruf explains a key legal change regarding FGTS (Severance Indemnity Fund) and the 40% fine in labor lawsuits. He highlights a recent ruling by the TST (Superior Labor Court) that mandates these amounts be deposited directly into the claimant’s FGTS account, rather than paid directly to the worker. Renato discusses practical strategies for lawyers to avoid the risk of not receiving their fees, including clauses for retaining fees from FGTS deposits, and how to request an alvará (court order) for early withdrawal in certain cases. His tips are crucial for adapting to this new ruling to ensure lawyers are compensated properly.

Takeaways

• 😀 The TST (Superior Labor Court) mandates that any amounts related to FGTS or the 40% penalty must be deposited into the claimant's FGTS account, not paid directly to the claimant.
• 😀 Lawyers must understand the new precedent to avoid risk of not receiving payment for their fees when the amount is deposited directly into the client's FGTS account.
• 😀 If a client has opted for the 'anniversary withdrawal' option, any deposit made into their FGTS account cannot be immediately accessed, which poses a risk for receiving fees in such cases.
• 😀 When dealing with labor lawsuits, it is crucial to ensure that the amounts for FGTS and its 40% penalty are deposited in the FGTS account, as per the TST's ruling.
• 😀 It is advised not to specify amounts related to FGTS or its 40% penalty directly in settlements or agreements to avoid complications with future payment retrieval.
• 😀 The 40% penalty on FGTS is an indemnity and should not be treated as a regular wage or other compensatory payments. Always ensure it is deposited in the FGTS account.
• 😀 Lawyers should include a clause in settlement agreements to avoid discriminating against amounts related to FGTS or its penalty, ensuring proper deposit into the FGTS account.
• 😀 If an agreement is already in place or a judgment is final, lawyers should minimize the amount of FGTS and 40% penalty to avoid potential difficulties in accessing the funds.
• 😀 In your initial petitions, always request the issuance of an 'alvará' (warrant) to authorize the release of any FGTS funds deposited into the claimant's account, if applicable.
• 😀 For any fees owed, lawyers should add a specific clause in their contracts stating they can deduct their fees directly from any amounts deposited into the claimant's FGTS account.

Q & A

What recent change did the TST determine regarding FGTS and the 40% fine in labor lawsuits?

The TST determined that any amounts related to FGTS or the 40% fine on FGTS in labor lawsuits must be deposited into the claimant's FGTS account, not paid directly to them.

Why is it important for lawyers to understand this change about FGTS deposits?

It's crucial for lawyers to understand this change to ensure that they can still collect their attorney's fees and avoid the risk of not receiving payments if the funds are deposited directly into the FGTS account of the claimant.

What risk does a lawyer face if they don’t follow the new TST ruling?

If lawyers don’t follow the new ruling, they risk waiting for years without receiving attorney fees, as the funds in the claimant's FGTS account may not be easily accessible until certain conditions are met.

What is the key reason why an agreement in a labor lawsuit should not specify FGTS or the 40% fine directly?

An agreement should not specify FGTS or the 40% fine directly to avoid violating the TST’s binding precedent, which requires these amounts to be deposited in the FGTS account instead of being paid to the claimant directly.

What is the first strategy lawyers should follow to avoid complications with FGTS payments?

The first strategy is to avoid discriminating any amount as FGTS or the 40% fine in settlement agreements. Instead, lawyers should identify these amounts as other indemnity-related categories such as moral damages or vacation pay.

What should lawyers do if they are in the execution phase of a labor lawsuit and an agreement includes FGTS or the 40% fine?

In the execution phase, lawyers should minimize the amount of FGTS or the 40% fine in the settlement, as these will be deposited into the claimant's FGTS account and not paid directly to the claimant.

How can lawyers request the release of FGTS or the 40% fine if it is deposited in the claimant's account?

Lawyers can include a specific request in their initial petitions for the judge to issue an order for the release of the FGTS or 40% fine deposited in the claimant’s FGTS account, provided certain conditions like dismissal without cause are met.

What is the significance of the 'saque aniversário' in relation to the release of FGTS funds?

If the claimant has opted for 'saque aniversário' (annual withdrawal), they will not be able to withdraw any FGTS funds until they meet the conditions for withdrawing under this scheme, even if a judge issues a release order.

How can a lawyer ensure they can collect their fees from amounts deposited in the claimant's FGTS account?

A lawyer can ensure they can collect their fees by adding a clause in their contract that allows for the deduction of attorney's fees from any FGTS amounts deposited into the claimant's FGTS account.

What key clause should lawyers include in their contracts to avoid problems with collecting attorney's fees from FGTS?

Lawyers should include a clause in their contracts authorizing them to retain a percentage (e.g., 30%) of any amounts deposited into the claimant’s FGTS account as part of their attorney’s fees.