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What are the requirements relating to advertising positions?
There are no specific rules for advertising jobs in Portugal. Nevertheless, in compliance with the constitutional equality principle and non-discrimination rules, job advertisements must not include discriminatory criteria or conditions (eg, age, nationality, race, gender, physical appearance and religion).
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Companies are allowed to request a job applicant’s criminal record only when there are grounds to do so (eg, because of the nature of the activity or the specific duties to be carried out by the applicant). In addition, a written request justifying the need for such information must be provided to the employee.
That said, requests for criminal records should still be assessed on a case-by-case basis, as the information contained is not always essential to verify the ability of the job applicant to perform certain professional activities.
In addition, the information contained in a criminal record is deemed sensitive data and, therefore, an authorisation from Data Protection Agency is required in order to allow the company to collect the job applicant’s personal data. The consent of the job applicant must also be obtained.
(b) Medical history?
From a labour law standpoint, as a general rule companies cannot require job applicants to undertake medical examinations. However, this rule has two exceptions:
- if such an examination is intended for the protection and safety of the job applicant or third parties; or
- if it is justified by the particular requirements of the activity.
In any case, it is mandatory that companies justify, in writing, the need for such an examination.
The physician responsible for any medical examination cannot inform the company of the specific results of such exams, but only of whether the job applicant is fit for the job or not.
From a personal data standpoint, the results of medical examinations are deemed to be sensitive and, therefore, an authorisation from the Data Protection Agency is required in order to allow the companies to collect the job applicant’s personal data.
(c) Drug screening?
Drug screening of applicants and employees is generally not allowed. An examination can only be carried out by an occupational doctor and only in order to assess whether the employee is fit for work.
(d) Credit checks?
Credit checks are not allowed, since they involve privileged personal data.
(e) Immigration status?
Employers must ensure that applicants are allowed to work in Portugal and that they hold legitimate entitlement to do so (visa or work permit).
(f) Social media?
This type of background check is not specifically regulated. Researching candidates via social media is not prohibited by law, provided that the information is retrieved from freely accessible public sources.
The possibility of conducting backgrounds checks on employees is very limited. However, employers are allowed to request for referrals directly from the applicants, as well as for their authorisation to collect certain information.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage is set as follows:
- €557 in the continental territory;
- €570 in Madeira; and
- €584.85 in the Azores.
Are there restrictions on working hours?
The normal work period cannot exceed eight hours a day or 40 hours a week, except when otherwise established in a collective bargaining agreement. Extensions of up to 15 minutes a day are permissible.
Portuguese employment legislation allows flexibility of working hours (eg, exemption from working time, bank of hours, adaptability).
Hours and overtime
What are the requirements for meal and rest breaks?
Weekly rest Employees are entitled to at least one day of rest per week, which is normally Sunday. The employee can be given a full or half day of rest for every week or for specific weeks of the year in addition to the mandatory one day per week.
Daily break Work days must be interrupted by a break of not less than one hour and not more than two hours, normally taken in the middle of the day (lunch time), since the law forbids more than five hours of work without a break or six hours of work without a break when the work day lasts more than 10 hours. The law allows for exceptions in some specific circumstances.
Daily rest Employees are entitled to a minimum of 11 continuous hours of rest between two consecutive working days. This does not apply to activities that require continuous service or production, provided that the corresponding time off is subsequently given to the employee, this includes activities at:
- telecommunications companies; and
- industries involving continuous work.
How should overtime be calculated?
Employees working over the regular working time are, as a rule, entitled to overtime pay. Overtime limits are:
- 175 hours per year in micro companies or small-sized companies;
- 150 hours per year in large and medium-sized companies;
- for part-time employees, 80 hours per year or the ratio between the part-time and full-time if higher; or
- two hours per day.
Overtime pay is paid as follows:
- on business days, an additional 25% for the first hour or fraction thereof and 37.5% for the following hours; and
- on mandatory or complementary weekly rest days and bank holidays, an additional 50% for each hour or fraction thereof.
Overtime payment is based on the employee’s hourly salary and calculated as follows:
- monthly base salary times 12; or
- 52 times weekly work schedule.
The employer must keep an accurate record of the employee’s working time and overtime.
What exemptions are there from overtime?
Employees exempt from a working time are not entitled to overtime pay for the work rendered in certain periods but, as a rule, receive a monthly allowance for such exemption.
Is there a minimum paid holiday entitlement?
As a rule, employees are entitled to 22 paid working days of annual leave per year in addition to bank holidays. Employees are also entitled to a holiday allowance corresponding to their remuneration.
What are the rules applicable to final pay and deductions from wages?
On termination, an employer must pay the employee:
- his or her final salary;
- any accrued credits (eg, overtime pay); and
- final salary credits arising from the termination.
Final salary credits include:
- untaken holidays and the corresponding holiday allowance;
- compensation for the holidays that would accrue in the following year if the employment agreement was not terminated (calculated in proportion to the execution of the employment agreement in the termination year) and the corresponding holiday allowance; and
- Christmas allowance proportional to the execution of the employment agreement in the termination year.
Deduction from wages is restricted and can occur only in certain situations.
The salaries paid to employees are subject to personal income tax and social security contributions. Employers have to withhold part of the employees’ salaries for personal income tax purposes, the rates being progressive depending on the salary amount, marital status and number of dependants. Social security contributions are shared between the employer (as a rule, 23.75% – although farmers, fishermen, footballers and other groups of employees warrant different rates) and the employee (as a rule, 11% – although some groups of employees warrant different rates). Employees’ contributions are withheld by the employer (deducted from the employee’s monthly salary) and paid to Social Security.
What payroll and payment records must be maintained?
Employers must provide employees with a payslip each month, including the final payslip on termination. Tax and social security payment forms must also be kept on file.
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