The social security inspections are currently creating criteria absent of the Brazilian profit sharing law (n°10.101/2000) to criticize the plans of several companies, in alleging that the employees are earning differentiated amounts and their participation is not proportional to the annual compensation, as if these facts were prohibited and thus could refute the participation negotiated between company, employees and Trade Unions.

Besides the fact that these inspector's allegations are not provided by law, it must be said that it is perfectly normal that a company, in its profit sharing plan, divides the employees into homogeneous groups, in accordance with the activities performed, seniority, and/or responsibility.

It would not be fair nor equal evaluate employees in different activities (administrative or production, for example) or in professional stage so different by the same criteria, and much less would it be fair if you pay the same amount of participation for employees who have level of commitment and responsibility quite differentiated. Already defined the Supreme Court, long ago, that equality is treating the same also and the unequal unequally.

Soon, it is possible to understand with ease that the contributions expected from each group of employees (administrative, factory floor, managers, etc) are different, and they are also differently evaluated, with different goals and metrics, resulting, obviously, in distinct amounts of participation.

In this sense, the Brazilian Council of Administrative Appeal, responsible to judge social security assessments, already defined in several precedents that "Do not fails to legislation the fact that employees receive different values, to the extent that the Law 10.101/00 does not require that all be pleasantly surprised also, situation that would conspire with the standard itself that you want the commitment and the fulfillment of the targets by the parties, being that each which will be subject to the challenge to achieve the planned objectives and may receive more or less." (Judgment N° 2301003.571 - 3rd Chamber / 1st Class Ordinary Session of June 19, 2013).

Specifically about the disproportionality, the same Council decided that "Because not listed in the Law n. 10.101/2000, it is not possible to indicate the disparity between the wages and the value received as profit sharing as disagreement situation with the standard of conducting." (Judgment N° 2401-003.606-Session of August 12, 2014).

Thus, it is more than time for the inspections to review its understanding about the subject, in order to respect the law and the agreement between company, employees and Trade Unions.

By Rodrigo Ramos de Arruda Campos, Partner of Social Security department at Demarest Advogados

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.