How the impediment and suspension of limitation periods provided for in Law No. 14,010/2020 apply to the two- and five-year statutes of limitations in Labor Law is what we will examine in this article.

LIMITATION X PEREMPTION

The concepts of “prescrição” (limitation) and “decadência” (peremption) are often confused.

Therefore, it is important to clarify what each of these figures means.

In a few words, we can say that while limitation is the loss of the possibility to dispute a right, peremption is the loss of the right itself.

In the words of Professor Rodolfo Pamplona, Labor Judge of the 15th Regional Labor Court, quoted in a livestream entitled “Law 14.010/2020 and Labor Limitation,” hosted by the YouTube channel Amatra5:

“Limitation is the loss of a claim. It refers to claims of a condemnatory nature.

Peremption is the loss of a potestative right. The exercise of a right.”

(https://www.youtube.com/watch?v=kYh8uzOWehE – Video timestamp 31m10s)

LIMITATION IN LABOR LAW

Well then. Having defined the concept of limitation, it is important to understand what the two-year statute of limitations is and what the five-year statute is, as applied to Brazilian labor procedure.

In this regard, let us see what the Consolidation of Labor Laws (CLT) provides:

Art. 11/CLT – Claims regarding credits arising from employment relationships are time-barred after five years for urban and rural workers, up to the limit of two years after termination of the employment contract. 

• 1º The provisions of this article do not apply to actions whose purpose is to obtain entries for evidentiary purposes with Social Security..
• 2º In cases involving claims for successive payments arising from changes to or breach of the agreed terms, the limitation is total, except when the right to the installment is also guaranteed by law.
• 3o Interruption of the limitation period shall only occur upon filing a labor complaint, even if before an incompetent court, and even if dismissed without a decision on the merits, producing effects only in relation to identical claims.

In the same vein, see what our Federal Constitution (1988) provides:

Art. 7º/CF – The following are rights of urban and rural workers, in addition to others aimed at improving their social condition: (...)

XXIX - the right of action for claims arising from employment relationships, with a limitation period of five years for urban and rural workers, up to the limit of two years after termination of the employment contract;

For the purposes of this study, it is important to clarify what the caput of art. 11 of the CLT governs.

As can be observed, when drafting the legal provision in question, the legislature established both a five-year period and a two-year period, both limitation periods.

Thus, the five-year period corresponds to the time during which it is permitted to dispute rights arising from the employment relationship between the litigating parties; this period is counted retroactively from the date the labor action is filed, up to five (5) years back—meaning the right to discuss any credits arising from the employment relationship that one believes (or not) to be owed is time-barred for periods prior to that.

Additionally, the two-year limitation period must be considered; this is the time the legislature has set as the maximum for filing a labor lawsuit.

By drafting art. 11 of the CLT, the legislature limited the possibility of bringing a judicial claim to two (2) years counted from the end of the employment relationship.

APPLICATION OF LAW Nº 14.010/2020

Having defined the guiding elements of this study’s subject, we now consider the application of Law No. 14,010/2020 to the labor procedure limitation periods—the main focus of our analysis.

First of all, it is necessary to highlight that Law No. 14,010/2020, in its own terms, “Provides for the Emergency and Transitional Legal Regime of private-law legal relations (RJET) during the coronavirus (Covid-19) pandemic.”

Although employment relationships are governed by contractual guidelines largely shaped by mandatory norms, this does not deprive these legal relations of their nature under Private Law.

Therefore, in our view, it is evident that the provisions of Law No. 14,010/2020 apply to the realm of Labor Procedural Law, both with respect to the two-year and the five-year limitation periods.

Accordingly, let us look at the wording of art. 3 of Law No. 14,010/2020:

Art. 3º  Limitation periods shall be deemed impeded or suspended, as the case may be, from the date this Law enters into force until October 30, 2020..

• 1º  This article does not apply while specific situations of impediment, suspension, and interruption of limitation periods provided for in the national legal system persist.
• 2º This article applies to peremption, as provided for in art. 207 of Law No. 10,406, of January 10, 2002 (Civil Code).

(emphasis added)

Also, pursuant to art. 21 of Law No. 14,010/2020:

Art. 21. This Law enters into force on the date of its publication.

Analyzing the text of the Law cited and considering that it was published on 06/12/2020, we have that the limitation periods (two-year and/or five-year) are deemed impeded or suspended, as applicable, during the period 06/12/2020 to 10/30/2020.

In this context, it is worth pinpointing which situations constitute impediment and which constitute suspension of limitation periods. Let us see:

Impeded periods: The start of the limitation clock had not yet occurred, insofar as the periods had not begun to run. Therefore, the counting will only begin after the end of the time frame set forth in art. 3 of Law No. 14,010/2020; and

Suspended periods: The limitation clock had already started before the Law came into effect. Therefore, the limitation “pauses,” resuming its count as from the end of the application period set forth in art. 3 of Law No. 14,010/2020.

More than one year having passed since the end of the effectiveness of art. 3 of Law No. 14,010/2020, we can observe how the judiciary has dealt with a gap, much debated at the time—namely, whether the Law applies retroactively to the period from 03/20/2020 to 06/11/2020.

It so happens that the provisions of Law No. 14,010/2020 are silent as to whether the impediment or suspension of limitation periods applies retroactively to the period from 03/20/2020 to 06/11/2020. In other words, the period prior to the Law’s entry into force but during the effectiveness of Legislative Decree No. 6/2020, of March 6, 2020, published and effective as of 06/20/2020.

If we look only at the text of the Law, we must conclude that suspension of limitation periods applies only from the Law’s entry into force, and there is no suspension during the period prior to 06/11/2020.

It is true that there are judicial opinions to the effect that sole paragraph of art. 1 of Law 14.010/2020 would suffice to cure this gap, since it sets March 20, 2020 as the initial date for all purposes of the enacted Law. Let us see:

Art. 1º This Law establishes transitional and emergency rules for the regulation of private-law legal relations due to the coronavirus (Covid-19) pandemic.

Sole paragraph. For the purposes of this Law, March 20, 2020, the date of publication of Legislative Decree No. 6, is considered the initial date of events arising from the coronavirus (Covid-19) pandemic.

(emphasis added)

However, the majority judicial view is that the temporal marker for suspending limitation periods is June 12, 2020, considering the provisions of art. 3 of Law 14.010/2020 and the Law’s commencement of effectiveness.

This line of reasoning follows the understanding that, where the two-year limitation period was running during the interval from 03/20/2020 to 06/11/2020, and the claimant did not bring suit before Law 14.010/2020 was published, it is clear the claimant lacked the intention to litigate any alleged dissatisfaction, and there is no presumption that the claimant was impeded from accessing the Labor Judiciary.

Even so, given particular circumstances involving impediments to accessing the Labor Courts—which must be proven by the plaintiff—this temporal marker may be “flexibilized,” in light of the theory that “prescription does not run against those who were not inert” (contra non valentem agere non currit praescriptio—a legal principle drawn from Roman law).

By: Thiago Nishiyama Tondelli
TECH – Tanganelli & Chaves Advogados