Labor Law and Management of Human Resour
The domestic worker and penhorabilidade the residential property of the employer Autor: Luana Bezerra da Silva - Área Trabalhista e Gestão de RH - OAB/RS 72.972
The recent change in the law concerning the rights of domestic workers, introduced by constitutional amendment No. 72, brought a considerable increase in the burden of those employees, who have been consistently reported by law enforcement officers as well as the media.
It happens that, besides labor rights now recognized to these employees, other important issues in our pre-existing legislation and which were not well remembered now have even greater relevance.
Despite not knowledge of most employers, it is hereby clarified that the credit arising from the lawsuit filed by the domestic worker is one of the few exceptions to the rule of immunity from seizure of the property of the employer only, in which it resides.
For over two decades there is the Law No. 8009, which deals with unseizability. Such regramento establishes guidelines on penhorabilidade goods, bringing to our legal guarantee of good family debts against the property owner, if it is established your residence.
Indeed, article 1 of Law No. 8.009/90: "The residential property the couple, or family entity, impenhorável and is not liable for any civil debt, trade, tax, social security or other, contracted by spouses or parents or children who are the owners and residing therein, except in the cases provided by this Law
Thus, the labor debts generally do not allow the attachment of single residential well, but when the debt refers to domestic workers, there permissive legal confiscation.
In his art. 3, paragraph I, exceptionally, Law 8.009/90 states that unseizability of good family does not apply in the enforcement process when it comes to labor "... claims workers own residence and their pension contributions ...".
It is noted that the new rules that went into effect in April this year for the domestic worker does not change anything in the law from seizure. Only make the situation even more alarming, considering that labor claims filed so far, mostly overwhelming, generated minor convictions.
With the legislative amendment is that the trend demands result in executions with more value-added, requiring a greater availability of funds for immediate payment, which of course will increase the number of processes that will come to the attachment of property.
Noteworthy is that the massive case law on the matter, in the sense that it does not apply the rule of unseizability single family asset when dealing with claims of their own house workers and their pension contributions.
However, it is noted that such a procedure is not immediate, being necessary to the execution reaches this attachment, that debt is already pre-made and must have exhausted other less restrictive forms of due performance of the debts resulting from the process including the attachment of accounts and chattel, even those which line the home.
It should be noted also that the dominant understanding of the courts is that the Labour Law No. 8.009/90 and Law No. 10.741/03 (the Elderly) do not exclude the responsibility of the senior debt assumed by him regularly, because age and the diseases that are inherent are not exclusive of the duty to pay debts owed to domestic employees. Thus, there are few labor lawsuits filed by elderly caregivers in which there is the validation of the seizure of the only residential property these employers.
Therefore, it is important that the employer be aware of legislative changes with regard to this category, adopting some measures as addenda contractual adjustments regarding working hours, among others, in order to prevent executions ruthless and even the loss of the only property the employer, in which it resides.
