Saque do FGTS pelo empregador

Saque do FGTS pelo empregador

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O Fundo de Garantia por Tempo de Serviço foi criado pela Lei n. 5.107 de 1966, hoje regulado pela Lei n. 8.036 de 1990, e com ele iniciou-se o processo de extinção do sistema celetista de indenização por tempo de serviço e estabilidade decenal no emprego. Atualmente, o FGTS é um direito fundamental de todo trabalhador, garantido pelo 7º artigo da Constituição Federal de 1988.

No período compreendido entre a criação do FGTS e a promulgação da Constituição Federal vigoraram os dois sistemas: o do FGTS e o sistema de indenização por tempo de serviço/estabilidade decenal.

Ao empregado caberia optar pelo Fundo de forma expressa (por escrito), no instante da celebração do contrato. Esta opção lhe conferia o direito a depósitos mensais em sua conta vinculada, no importe de 8% sobre seu salário. Entretanto, os funcionários que não participassem do fundo contavam com a estabilidade decenal, ou seja, trabalhadores com mais de 10 anos de empresa só poderiam ser demitidos por justa causa.

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Apesar de a participação no FGTS ser opcional, o empregador deveria, assim como para os optantes, manter uma conta corrente com depósitos mensais de 8% do salário. Trata-se de uma conta corrente da empresa vinculada aos trabalhadores não-optantes.

No momento em que houvesse a rescisão do contrato de trabalho desse trabalhador não-optante com tempo de serviço anterior a 05/10/1988, tendo ele recebido a indenização pelo regime de estabilidade, o saldo total da conta a ele vinculada pertencia à empresa depositante.

Se a data de início das atividades da sua empresa já completou 29 anos ou mais, existe a possibilidade da existência de saldo para resgate. Para isso, a empresa deve solicitar levantamento junto a Caixa para verificar o saldo nas contas e as quais empregados ele se refere. A seguir, a empresa deve reunir documentos que comprovem a vinculação que os antigos funcionários tinham com ela, de acordo com o Manual do FGTS-Movimentação de Conta Vinculada (08/2017), item 11 (Código de saque 27) e apresentá-los a uma Delegacia Regional do Trabalho.

Muitas empresas ainda não requereram os valores depositados e a Caixa Econômica Federal não tem tido o cuidado de chamar os empregadores para receber os créditos das contas individualizadas. O prazo para requerer os depósitos vence em 5 de outubro de 2018, quando a Constituição completa 30 anos. Os valores que não forem sacados serão incorporados ao patrimônio da Caixa Econômica Federal e não poderão mais ser requisitados pelas empresas.

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