The Dark Side of doctors’ pejotization – Renato Assis

(photo: Reproduction/Social networks)

On 02/23, the first group of the Federal Supreme Court (STF) judged the contracting of medical services through Legal Entities to be valid. Most ministers understood that the modality is not a way of circumventing labor legislation, if the requirements of the employment relationship are not present.

In the lawsuit, the Public Ministry of Labor (MPT) questioned the modality, arguing that doctors could only be hired as individuals, under a labor regime. Initially, the TRT of the 5th region had given precedence to the MPT’s claim, but now the STF has reformed the decision, declaring this form of contracting as valid and lawful.

The phenomenon of pejotization was developed in all sectors through Federal Law 13.429/2017, which amended the Consolidation of Labor Laws (CLT). The so-called “labor reform” innovated by allowing the outsourcing of staff, including for the core business of companies. And in the case of doctors, the great expansion took place during the pandemic, with the growth in demand for professionals.

For the doctor, the heart of the matter is the taxation of his income. While the distribution of dividends to partners of companies is exempt from Income Tax, in the case of contracting by CLT, up to 27.5% is retained for payment of IR. In this way, opening a PJ and receiving for it can be very advantageous, provided that contractual, fiscal and tax risks are observed and mitigated.

For the contractor, the central focus is on payroll costs. Pejotization frees you from a series of charges (such as prior notice, 13th, vacation, FGTS, unhealthy and hazardous work premiums, night shift, and even maternity leave), which burden the payroll by up to 37%, in addition to legal labor liabilities.

This is exactly where the first risk lies: contracting through PJs can be a strategy for contracting parties to circumvent the labor rights of doctors and camouflage an employment relationship, harming the rights of employees and avoiding labor liabilities. It would be contracting in an outsourced way, when in fact there is no outsourcing at all, only the concealment of an employment relationship.

The difference between one framework and the other, the existence of the mother of service takers, to hide the requirements that constitute the employment relationship, which are cumulatively: personality, habituality, subordination and onerosity, all provided for in art. 3 of the Consolidation of Labor Laws (CLT):

Art. 3 – An employee is considered to be any individual who provides services of a non-possible nature to the employer, under his/her dependence and for a salary.

In the daily routine of doctors, it is noted that in many cases the requirements are present, despite being hired as a PJ. Personality can be identified by providing services in a personal way (although, as a rule, there is no exclusivity). Habituality and onerousness, in the fact that professionals work at least twice a week in the same offices, being paid for the hours worked. And the subordination can reside in the subjection to the rules and guidelines of the hospitals (such as the schedule of plans and internal regulations). That is, it is always a case-by-case analysis to verify the existence of the requirements of the employment relationship.

The pejotization of doctors is increasingly a consolidated reality. Especially after the positive nod from the STF. And all the nuances presented here make it clear that both service providers and doctors need to be cautious when adopting the modality. Brazilian law is highly complex, and the volatility of our courts subjects all rules to a wide range of interpretation.

It is essential that both companies and doctors have specialized legal support, so that risks are properly mapped and mitigated. Because medical training does not prepare professionals to deal with the legal management of their business, and its nuances in the contractual, fiscal and tax areas. It’s no use saving on taxes now, and creating a monstrous liability for the future.

It is important to note that the STF decision contradicts recent TST decisions, such as the one that recognized the employment relationship between self-employed drivers and the company Uber, published on 04/11/2022. But it is in line with previous decisions of the STF itself, considering that hypersufficient professionals who carry out intellectual activities have full capacity to evaluate and decide on their hiring regime (an understanding that, however, violates the CLT rules). In other words, a conflict of understanding worthy of our legal institutions and courts.

Finally, it is worth calling attention to one last aspect: acting as a liberal professional, the doctor responds subjectively, depending on the proof of guilt (negligence, recklessness or incompetence) to be held accountable. However, as a PJ, he becomes part of the consumption chain, and responds in the same way as the hospital or clinic: objectively (independent of guilt), being able to respond objectively even for the absence on a shift (which under normal, would only respond administratively and ethically). But as a PJ, eventual damages to the consumer would not only fall on the hospital, but also on another responsible company (the doctor). That is, as PJ, the doctor starts to answer to the hospital, even for the consequences of what he did not do.

For all these reasons, we understand that the pejotization of doctors represents the modernization of the relationship between the parties, and can be very advantageous for both, given the high cost given the burden of the relationship by the CLT. However, there is a Dark Side that, if not observed, can represent a great harm to the doctor, due to all the risks involved.

*Renato Assis lawyer, specialist in Medical and Dental Law for 15 years, and legal and scientific advisor to ANADEM. founder and CEO of the firm that bears his name, headquartered in Belo Horizonte/MG and active throughout the country.

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