What is the deadline for withdrawing FGTS after resigning?

The Severance Indemnity Fund (Fundo de Garantia do Tempo de Serviço - FGTS) is a right guaranteed to Brazilian workers, created with the aim of protecting the employee in the event of dismissal without just cause, as well as other events provided for by law. However, a common question among workers is: what is the deadline for withdrawing the FGTS after resigning? See below.

What is the FGTS?

The Severance Indemnity Fund (FGTS) is one of the pillars of the Brazilian worker protection system. Created by Law No. 5.107, of September 13, 1966, and regulated by Law No. 8.036, of May 11, 1990, the FGTS is a right guaranteed to all workers with a formal contract, whether they are governed by the Consolidation of Labor Laws (CLT), by their own statutes, by Law No. 8.112/90 (civil servants), or even rural workers.

The main purpose of the FGTS is to create a financial reserve on behalf of the worker, to be used at specific times in their professional life, such as when buying their own home, in cases of dismissal without just cause, in situations of serious illness, among others provided for by law.

The FGTS works as follows: every month, the employer is obliged to deposit the amount corresponding to 8% of the employee's salary into a linked account opened in the employee's name at the Caixa Econômica Federal. This deposit must be made by the 7th of each month, and failure to comply with this obligation subjects the employer to penalties provided for by law.

Workers' rights in relation to FGTS

Understanding workers' rights in relation to the Severance Indemnity Fund (FGTS) is fundamental to ensuring a fair and balanced employment relationship. 

FGTS entitlement

Every worker with a formal contract is entitled to FGTS, regardless of the type of employment contract (temporary, part-time, intermittent, etc.). The employer is responsible for making the monthly deposits into a linked account in the employee's name at the Caixa Econômica Federal. The amount deposited corresponds to 8% of the employee's salary and is not deducted from their paycheck.

Guarantees and protection

The FGTS is a guarantee for workers in the event of unfair dismissal, offering financial security while they look for a new job. In addition, the fund also serves as a reserve for emergency situations, such as serious illnesses, enabling access to financial resources in times of difficulty.

Monetary restatement and income

The amounts deposited in the FGTS are monetarily adjusted and add annual interest, which ensures that the balance appreciates over time. In this way, the FGTS acts as a form of investment, providing workers with a more robust financial reserve for the future.

Deadline for withdrawing FGTS after resigning

The deadline for withdrawing FGTS after resigning is a question that raises many doubts among Brazilian workers. Unlike cases of dismissal without cause, where access to FGTS funds is immediate, when the worker resigns, there are specific rules to be followed.

1. Deadline set

The deadline for withdrawing FGTS after resigning is three years from the date of resignation recorded on the Work and Social Security Card (CTPS). This means that workers who voluntarily quit their jobs must wait this period to access the funds deposited in their FGTS account.

2. Balance and income

The balance and income of the Severance Indemnity Fund (FGTS) are fundamental elements that contribute to the appreciation and effective use of this benefit by Brazilian workers. Understanding how these aspects work is essential to ensure conscious financial management and maximize the benefits of the FGTS. Below, I'll go into more detail about the FGTS balance and income:

FGTS balance

The FGTS balance refers to the total amount of funds deposited in the worker's linked account over the period in which they were employed with a formal contract. This balance is made up of the monthly deposits made by the employer, corresponding to 8% of the worker's salary, as well as any additional deposits, such as those relating to legal agreements, termination fines and monetary updates.

FGTS income

FGTS earnings are the financial gains that the balance of the worker's linked account earns over time. These earnings are calculated on the basis of an annual interest rate set by the Federal Government, which is usually higher than the inflation rate, thus guaranteeing the appreciation of the FGTS balance in real terms.

Monetary update

In addition to the income provided by the interest rate, the FGTS balance is also updated periodically. This means that the amount deposited in the worker's account is adjusted in line with inflation rates, ensuring that its purchasing power is preserved over time.

3. Exceptional situations

Although the standard period for withdrawing the FGTS after resigning is three years, there are some situations in which the worker can access the funds before this period, such as termination by agreement, suspension of the employment contract, purchase of a home or serious illness.

4. The importance of financial planning

Faced with the three-year deadline for withdrawing the FGTS after resigning, it is important for workers to make adequate financial plans to deal with this situation. If necessary, it is possible to look for alternative income or even use other financial resources while waiting for the established deadline.

Situations in which it is possible to withdraw FGTS after resigning

Although the deadline for withdrawing the FGTS after resigning is three years, there are some specific situations in which workers can access the balance of their linked account before this deadline. These are

1. Termination by agreement

Termination by agreement is a method of ending an employment contract that has gained importance in the Brazilian labor scene. This form of termination occurs when employer and employee decide, by mutual agreement, to end the employment relationship amicably, without the need for unilateral resignation on the part of the employer or resignation on the part of the employee.

Procedure and requirements

For termination by agreement to be valid, it is necessary to follow certain procedures and meet certain requirements, as established in the 2017 Labor Reform. Among the main aspects to be observed are:

• Expression of will: Employer and employee must expressly and voluntarily express their interest in terminating the employment contract by means of an agreement.
• Approval: The termination agreement must be formalized in writing and signed by the parties in the presence of two witnesses. In addition, the document must be approved by the trade union of the professional category or by the authority of the Ministry of Labor.
• Payment of severance pay: The employer must pay the employee all severance pay due, such as salary balance, prior notice (if applicable), proportional vacation, proportional 13th salary, among other labor rights.
• Withdrawal of FGTS: In the event of termination by agreement, the employee is entitled to withdraw up to 80% of the FGTS balance, but is not entitled to withdraw the FGTS relating to the indemnified prior notice, nor the 40% severance fine.

Advantages and disadvantages

Termination by agreement can bring advantages for both the employer and the employee. For the employer, this type of termination can represent financial savings in relation to labor charges, as well as avoiding possible legal disputes. For the employee, termination by agreement can provide a more amicable exit from their job, without tarnishing their professional record.

2. Suspension of the employment contract

Suspension of the employment contract is a situation in which the main obligations of the employee and the employer are temporarily interrupted, while the employment relationship between the parties is maintained. During this period, the employee stops providing services and receiving wages, while the employer is released from the obligation to pay remuneration and grant benefits provided for in the employment contract.

Situations that allow the suspension of the employment contract

There are some situations provided for by law that authorize the suspension of the employment contract, such as:

• Participation in a professional qualification program: Employees may have their employment contract suspended in order to participate in professional qualification courses or programs offered by their employer.
• Unpaid leave: In some cases, the employee can request unpaid leave from the employer, by agreement between the parties, to deal with personal matters or to carry out non-work-related activities.
• Leave due to illness or accident at work: In situations of illness or accident at work that prevent the employee from carrying out their work activities, the employment contract may be suspended during the period of leave.

3. Home ownership

The possibility of using the balance of the Severance Indemnity Fund (FGTS) to buy a home is one of the main advantages offered to Brazilian workers. This measure aims to facilitate access to home ownership and promote the realization of the dream of home ownership for thousands of families across the country.

• Rules and conditions: In order to use the FGTS to buy a home, the worker must meet certain rules established by the Minha Casa Minha Vida program or other types of housing financing. Among the most common conditions are: not owning another residential property in the same municipality where you intend to buy the new property, not being in the process of active financing in the SFH (Housing Finance System) in any part of the national territory, among others.
• Value of the property: The maximum value of the property to be purchased with FGTS funds varies according to the location and income bracket of the worker. Generally, properties located in more densely populated municipalities and metropolitan regions have a higher value limit for using the FGTS.
• Financing modalities: The FGTS can be used in different housing financing modalities, such as the Housing Finance System (SFH) and the Minha Casa Minha Vida Program. Each of these modalities has its own specific rules and conditions for using the FGTS.

4. Serious illness

The possibility of withdrawing the balance of the Severance Indemnity Fund (FGTS) in cases of serious illness is an important measure to protect Brazilian workers in vulnerable situations. This form of withdrawal aims to provide financial support to workers facing serious health problems, guaranteeing them a source of funds for medical treatment and other related expenses.

• Proof of illness: In order to withdraw the FGTS in cases of serious illness, the worker must present medical documents proving the seriousness of the illness, such as medical reports, exams, hospital reports, etc. This documentation is essential for the withdrawal to be authorized by Caixa Econômica Federal.
• List of serious illnesses: The FGTS can be withdrawn in cases of serious illnesses previously listed by law, such as cancer, AIDS, serious heart disease, incapacitating neurological diseases, among others. It is important to check whether the worker's illness is included in this list in order to guarantee the right to withdraw.
• Severity of the illness: In addition to proof of the illness, the worker's health condition must be serious enough to justify withdrawing the FGTS. In general, illnesses that cause temporary or permanent incapacity for work are considered serious for the purposes of withdrawing FGTS.

Withdraw your FGTS on time

The deadline for withdrawing the FGTS after resigning is three years, counting from the date of resignation recorded on the work booklet. However, there are some situations in which the worker can access the balance of their linked account before this deadline, such as termination by agreement, suspension of the employment contract, acquisition of their own home and serious illness. It is important that workers are aware of their rights in relation to the FGTS and seek appropriate advice if they have any doubts.

See also: Can people who work with a formal contract receive Bolsa Família?

March 31, 2024