Promoting specialists without properly structuring the new position can turn a talent retention strategy into a significant labor liability.
In an increasingly common “Y-shaped” career scenario, companies need to demonstrate, in concrete terms, the special trust placed in these employees, their strategic autonomy, and consistent compensation to avoid having to micromanage their work hours.
1. Compensation commensurate with the strategic role: In addition to a bonus of at least 40% of the base salary, some case law also considers it relevant that there be a salary difference compared to subordinates or employees in lower-level positions. Although this criterion is not absolute, consistency between compensation, seniority, and strategic importance strengthens the company’s defense in any dispute regarding overtime.
2. Documentation of the special trust relationship from the time of promotion: The designation as a position of trust should not be implied. The promotion letter or contract amendment must accurately describe the new responsibilities, the degree of decision-making autonomy, access to strategic information, and functional separation from day-to-day operations. In the case of employees with extensive autonomy, it is recommended to document the employee’s acknowledgment of their classification under the relevant legal provisions, the absence of working hour controls, as well as the benefits and responsibilities inherent to the new position.
3. Structuring of technical careers: In Y-shaped careers, professional growth stems from technical expertise rather than team management, which can make it difficult to apply the traditional definition of a position of trust. Demonstrating strategic initiative, participating in committees or key decisions, providing specialized technical advice, and maintaining a direct relationship with senior leadership become increasingly important, even in the absence of formal subordinates.
4. Use of contracts, internal policies, and collective agreements: The legislation permits collective agreements to establish criteria for identifying positions of trust. At the same time, well-structured internal policies, reference salary ranges, objective eligibility criteria, and standardized promotion documents constitute important evidence to support the classification of such positions in the event of a labor claim.
5. The discussion regarding positions of trust goes beyond the terminology used by the company: Periodic reviews of the job structure, validation of compensation criteria, updates to contractual documents, and alignment among HR, the legal department, and leadership can reduce exposure to litigation involving working hours and overtime pay, in addition to providing greater predictability in talent management for strategic positions.
As organizational structures evolve and technical careers take center stage, there is also a growing need to review traditional job classification models.
Reviewing job classification criteria, internal policies, and promotion documents allows companies to develop their strategic professionals with greater confidence and consistency, reducing risks and strengthening their position in the event of legal challenges.
