The phenomenon of stock options appeared in the United States in the 1950s and gained great visibility after the 1980s, when it became an almost absolute practice among large American companies. In the United States, the stock option system reached its peak between 2000 and 2001.
In Brazil, the issue has gained even more prominence with startups.
Originally applied to public limited companies, stock options authorize the option for employees of the company to buy shares in the future, for a pre-fixed amount, which is usually less than the market price, after a stipulated grace period. If the value of the share exceeds the price, the employee makes a profit and, as a result, is offered two alternatives: to immediately resell the capital gain or to keep his securities and become an employee shareholder.
The granting of stock options undeniably commits the employee to carrying out their activities for the good performance of the company. Good business results during the term of the employment contract, reflected in the value of the shares, give employees the chance to gain assets.
Stock option plans are relevant mechanisms in the business landscape, allowing companies to reward and retain key talent, stimulating long-term engagement.
The beneficiaries of a stock options program are generally executive employees and, in some cases, the company’s directors and consultants. The choice of beneficiaries can vary according to the company’s strategy and the program’s objectives.
In the labor sphere, the only controversy over stock options concerns their legal nature (remuneration or not).
The Superior Labor Court(TST) has repeatedly ruled that stock option contracts do not have a salary nature, since they are not in return for the employee’s work, even if they are contracted as a result of the employment relationship. In fact, at the time of exercising the purchase option, the employee assumes ownership of the shares and becomes subject to market volatility, and any difference, positive or negative, is not of a salary nature (it arises solely from the business and not from the employment relationship).
With the advance of technology, startups – innovative companies capable of scaling up – are growing at a rapid pace, promoting forms, environments and ways of working that are different from the usual.
However, there is no specific legislation regulating the labor and employment relations ofstartups. Complementary Law 182/2021 (Legal Framework for Startups) makes no mention of hiring methods or labor rights, and it is necessary to use the Consolidation of Labor Laws (CLT) to regulate employment relationships. Startups therefore have all the labor obligations and responsibilities, depending on the hiring method they adopt.
In other words, although they have an innovative and disruptive business model, startups are subject to the labor rules applicable to any other company.
In this context, stock options are an excellent mechanism for startups , since the option to participate in the company encourages work focused on results or agreed targets. It also helps to attract and retain highly skilled talent to carry out their work and boost the company’s growth.
Stock options are therefore an important tool in the management and growth process of startups.
In summary, despite the lack of specific legislation on the taxation of stock option plans, the prevailing jurisprudence is that the sums arising from these contracts are not remunerative in nature. As it is a commercial relationship, they are only subject to taxation on capital gains.