Tauil & Chequer Advogados

This year has brought several significant updates to Brazilian labour law, with key changes focusing on equal pay, digital communication requirements, and debate over the regulation of platform work. These developments highlight the increasing emphasis on gender equality, workplace mental health, and the evolving nature of work in the gig economy. This article outlines the key highlights from 2024 and looks ahead to 2025.   2024: Highlights of Changes in Brazilian Labour Law Equal Pay Equal pay has become a focal point in Brazilian labour law with the enactment of Law No. 14.611/2023, which mandates that companies with more than 100 employees publish transparency reports in the form proscribed by the Ministry of Labour, or face significant fines and penalties. These reports must detail any gender-based wage disparities, including differences in wages, benefits, and bonuses for employees in equivalent roles. Employers may also be required to implement internal policies to promote gender equality and conduct regular reviews of their compensation structures to identify and address any pay inequities. While inspections for this matter have not yet become commonplace, the first reports were made available this year, and avoiding legal risk will require compliance with the provisions of the new equal pay law.   Electronic Procedures This year, the Electronic Labour Domicile became the mandatory platform for receiving official labour-related communications regarding the Ministry of Labour's administrative procedures. This change eliminated the use of traditional means for receiving infraction notices and notifications by centralizing and streamlining the delivery of labour-related communications. Failure to maintain proper access could result in missed deadlines or potential legal complications. Employers must adapt to this digital shift and ensure compliance to avoid the risk of missed deadlines or non-compliance. In 2024, the main change introduced by the Electronic Judicial Domicile, regulated by Resolution No. 455/2022 and Ordinance No. 29/2023 from the CNJ, is the centralization of all judicial communications from Brazilian courts into a single platform. This enables more efficient receipt and tracking of summonses and notifications. The key development is Ordinance No. 46/2024, which establishes a mandatory registration deadline for private legal entities by May 30, 2024. If they miss the deadline, these companies will be automatically registered by the CNJ based on data from the Federal Revenue Service. For individuals, registration remains optional, while microenterprises and small businesses must register only if they do not have an electronic address in the Redesim system. This measure aims to regulate Article 246 of the Code of Civil Procedure, amended by Law No. 14,195/2021, and imposes penalties, such as a fine of up to 5% of the claim value, if the electronic summons is not confirmed within three business days. For other judicial communications, if not confirmed within ten calendar days, they will be automatically considered completed at the end of this period. The platform also offers email alerts to help track deadlines.   Legal Regulation and Case Law of Outsourcing in Brazil The Federal Supreme Court (STF) upheld the broad legality of outsourcing for core business functions in several decisions this year, rendered in the context of individual constitutional claims that challenged decisions rendered by lower-level courts. The STF clarified, however, that outsourcing cannot be used to disguise an employment relationship or circumvent workers' rights, such as vacation benefits, the 13th salary, or the FGTS (Severance Indemnity Fund). This decision emphasizes that companies that outsource must ensure that contracts are transparent and lawful, and that workers’ rights are respected, as provided under the Brazilian Labour Code. Outsourcing arrangements that are deemed as a fraud to the labour legislation, requiring individual to establish and provide services under legal entities could be annulled by the courts, leading to legal liabilities and potential fines.   Regulation on Platform Work Regulation on platform work advanced in 2024 with the introduction of a new bill aimed at improving the rights and conditions of platform workers. Bill 12/2024 sought to create a legal framework for the platform-based independent worker category, introducing provisions such as a 12-hour maximum workday, social security contributions by both workers and companies, and a minimum wage of R$ 32.10 per hour worked. However, the bill faced significant criticism—particularly regarding the perceived lack of worker autonomy—and was subsequently withdrawn from the legislative agenda. In response to this, Bill 536/2024 is currently under review, and may offer a more balanced framework for regulating gig economy work, but the bill continues to raise concerns over the level of autonomy for platform workers and the transparency of platform commissions. Companies in the platform economy, such as rideshare and delivery services, should remain alert to the evolving legal landscape in order to ensure compliance with new regulations once they are enacted.   Mental Health Mental health in the workplace has been a growing focus for employers. Under the Brazilian Labour Code and health regulations, employers are required to ensure a safe work environment that addresses both physical and psychological risks, including stress and burnout. Employers have faced legal consequences from failing to support employees with mental health conditions, such as not providing necessary accommodations or resources. Mental health illnesses such as depression and anxiety have been recognized as occupational diseases, and Brazilian authorities have demonstrated further concerns regarding these issues with the enactment of Law 14,831/2024, which created a certification process for companies that promote mental health. Employers must prioritize their employees’ mental well-being, in order to avoid legal and reputational risks arising from individual labour claims and inspections from labour authorities related to mental health issues.     2025: Outlook on Developments in Brazilian LaboUr Law Union Negotiations Union negotiations may present both challenges and opportunities for employers in 2025. While unions are likely to push for higher wages, better benefits, and improved working conditions, employers can still benefit from the flexibility that collective bargaining agreements (CBAs) offer. CBAs can override certain aspects of labour law, allowing employers and unions to agree on conditions that better suit both parties, such as modified work hours or more cost-effective benefits packages. This flexibility can help businesses manage labour costs while still complying with legal requirements.   Inspections in the workplace Inspections in the workplace are expected to become more stringent by 2025, with a focus on labour law compliance and health and safety standards. Employers should prepare for more frequent inspections, especially in high-risk industries like construction and manufacturing. The government is also likely to leverage digital tools for monitoring, making remote inspections more common with the recent issuance of the Electronic Labour Domicile. To stay ahead of this, employers should invest in regular safety training, ensure compliance with evolving regulations, and maintain transparent reporting systems. Proactive adherence to labour laws will help avoid fines, enhance workplace safety, and promote a culture of compliance, while reducing legal risks.   Workplace investigations Workplace investigations will be even more crucial for employers, both to mitigate labour risks and to anticipate the increasing number of inspections by labour authorities. Brazilian labour laws require fair, transparent, and well-documented investigations, especially regarding matters like harassment and discrimination. Employers must ensure compliance with procedural standards and maintain confidentiality.   Equal Pay The Equal Pay Law will likely be more strictly enforced, with increased scrutiny on gender pay gaps. Employers will need to ensure compliance by reviewing and adjusting compensation structures to avoid legal risks and reputational damage. While the law allows some flexibility, such as performance-based pay differences, companies may face inspections from the Ministry of Labour, as well as pressure from unions. Businesses should proactively audit their pay practices to mitigate the risk of legal disputes and ensure they meet the emerging expectations for workplace equality.   Workday Rules In 2025, a federal constitutional amendment proposal (PEC) may be presented in the Chamber of Deputies with the goal of redefining the limits of working hours in Brazil. The PEC raises an important debate on modernizing labour relations and its effects on both worker health and safety and the country's economy. Currently, the Federal Constitution sets a maximum workday of eight hours per day and 44 hours per week, with the possibility of flexibility through collective bargaining. The PEC proposes that the workday not exceed eight hours, but only for four days a week, with a maximum weekly workload of 36 hours. The proposal aims to implement a 4×3 work schedule, meaning four days of work followed by three days of rest. The justification for the PEC's creation is the need to offer greater protection to workers, focusing on their health, quality of life, productivity, and well-being. Long work hours can lead to physical and psychological impacts, such as fatigue, stress, and occupational illnesses. Therefore, the proposal seeks to create balanced working conditions.   Paternity Leave and Paternity Salary: Proposed Changes in Brazil The Human Rights and Participatory Legislation Commission (CDH) approved the proposal (PL 3.773/2023) that increases the duration of paternity leave and introduces a paternity salary. Currently, paternity leave lasts five days, but the proposal suggests a gradual extension, potentially reaching up to 75 days. In addition, companies that participate in the Citizen Company Program may extend the leave by up to 15 additional days. The proposal also establishes a paternity salary, which would be equal to the employee's full remuneration. This salary would be paid by the employer and later reimbursed by Social Security. The proposal must still go through several committees, including the Constitution and Justice Committee (CCJ), before being sent to the Chamber of Deputies. According to the text, paternity leave can be split into two periods: the first taken immediately after the birth or adoption, and the second within 180 days of the event. Additionally, in cases of premature birth or parental death, the leave will be extended or adjusted accordingly. The final regulation of paternity leave is expected to be concluded by 2025, as set by a deadline established by the Federal Supreme Court (STF). If not regulated by then, the STF may define the conditions for paternity leave.   FINAL CONSIDERATIONS In 2024, key updates in Brazilian labour law included the beginning of the enforcement of equal pay compliance and the mandatory use of the Electronic Labour Domicile. The introduction of the Electronic Judicial Domicile also became mandatory, streamlining communication between parties and the judiciary in labour-related matters. The STF’s decisions providing for further flexibility on outsourcing and mental health in the workplace also drew more attention from labour authorities. Looking to 2025, employers may face challenging union negotiations, more frequent inspections, and greater scrutiny on equal pay compliance. Furthermore, a proposed constitutional amendment (PEC) to redefine working hours in Brazil is expected to be a significant issue, with a potential shift toward a 4×3 workweek, which could impact labour relations and operational planning. Adapting to these changes will be essential to avoid legal risks and ensure continued smooth operations.   Authors:   Aline Fidelis [email protected]   Daniel Landim [email protected]   Thiago Garcia [email protected]   Fernanda Pina [email protected]

Overview of the Brazilian Labor Law provisions on DEI matters Throughout recent years, discussions regarding the promotion of diversity, equity and inclusion (“DEI”) in workplace have increased as a result of both changing social and corporate norms. Similarly, new legal provisions on the topic have been developed, which need to be monitored to comply with labor laws, as well as to mitigate the eventual risks associated with labor inspections and discrimination claims filed before labor courts by employees, unions or labor authorities.   Equal Pay The principle of equality is an essential principle of the Brazilian legal system. It is explicitly guaranteed in Brazilian Constitution, which states that men and women have equal rights and obligations under the law. Specifically attributing this principle within the context of employment law, the Brazilian Constitution prohibits any kind of income disparity related to gender, age, ethnicity and marital status. Article 461 of the Brazilian Labor Code (Consolidação das Leis do Trabalho, "CLT") guarantees that—when the employee's job is identical, all work of equal value performed for the same employer, in the same business establishment—shall correspond to equal pay, without regard to gender, ethnicity, nationality or age. The principle of equal pay is a legal guarantee given to workers against wage discrimination when their work is of the same value as another. Thus, unlawful or unequal pay may result in labor lawsuits filed by employees claiming salary differences and other grievances, as well as fines by labor authorities. The Brazilian Equal Pay Act As of July 2023, with the enactment of Brazilian Law No. 14,611, of 2023, also known as the Brazilian Equal Pay Act, new legal parameters were established for the promotion of diversity in workplace. These parameters give special consideration to gender equality, as well as strengthening possible enforcement actions against violators. Under the provisions of the Brazilian Equal Pay Act, companies that operate in Brazil with 100 or more employees must semi-annually publish salary transparency and remuneration criteria reports. The salary transparency and remuneration criteria reports must adhere to the following guidelines: (i) anonymized data; (ii) information must enable an objective comparison between salaries, remuneration, and the representation of women and men in executive, managerial, and leadership positions; and (iii) statistical data on other possible inequalities arising from race, ethnicity, nationality and age. The published reports must also comply with the Brazilian General Data Protection Law provisions regarding personal data and confidentiality. The Brazilian Equal Pay Act is already in effect, even if specific reporting templates and public administration platforms are yet to be determined. In this perspective, labor authorities can request that companies provide information and clarifications on the matter. Additionally, where pay inequality is identified, companies must devise an action plan to mitigate inequality with clear targets and deadlines, and involve representatives of employees’ unions and employees’ representatives. Consequences of Non-compliance with the New Equal Pay Act  Non-compliance and failure to publish salary transparency and remuneration criteria reports may lead to fines of up to 3% of employer’s payroll, limited to the amount of 100 minimum wages. The penalties stipulated by the Brazilian Equal Pay Act do not preclude other potential sanctions in wage discriminations cases, including compensation for wage disparities resulting from recognizing wage equalization or providing restitution for moral damages. Furthermore, if authorities deem the , companies may incur fines of up to ten times the amount of the new salary owed to the discriminated employee, and such penalties would double in case of recurrence. Government bodies such as the Ministry of Labor and Employment, the Public Labor Prosecution Office, and the Labor Court will conduct inspections and impose penalties. The Brazilian federal government will establish a specific enforcement protocol against wage discrimination and gender-based remuneration criteria.   Legal Quota for Disabled Employees Article 93 of Law No. 8.213, of 1991, stipulates that companies with more than 100 employees must have between 2% and 5% of their workforce made up of disabled employees, at the following rates: I – up to 200 employees: 2%; II – between 201 and 500 employees: 3%; III –  between 501 and 1,000 employees: 4%; and IV – more than 1,001 employees: 5%. In cases of non-compliance, the company may be subject to fines based on criteria such as the size of the company and repeat offenses. It is important that companies make a clear and unequivocal effort to hire employees with disabilities. If they are unable to do so due to external factors, all these efforts need to be kept on record to mitigate risks arising from inspections by the Ministry of Labor and Employment or the Public Labor Prosecution Office. Additionally, the dismissal of an employee with a disability without just cause will only be possible upon the hiring of another employee in the same condition, in order to guarantee compliance with the legal quota. Finally, it is notable that disabled employees are entitled to an accessible and inclusive environment, with equal opportunities with other employees, which shall be guaranteed by the employer. Restrictions on the work of employees with disabilities, and any discrimination on the grounds of their condition, are prohibited, including during recruitment, selection, hiring, admission, admission and periodic exams, permanence in employment, professional advancement and professional rehabilitation, as well as the requirement of full aptitude.   Race and Ethnicity Records As of April 2023, Law 14,553/2023 took effect, amending the Brazilian Statute of Racial Equality (Law 12,288/2010) to require employers to include a field for employees to indicate their self-identified racial or ethnic information, based on previously established groups, in administrative documents and records. This measure affects, but is not limited to, the following documents: (i) employee admission and dismissal forms; (ii) work accident forms; (iii) registration forms of the National Employment System (Sistema Nacional de Emprego, “SINE”); (iv) the employer’s Annual Social Information Report (Relação Anual de Informações Sociais, “RAIS”); (v) documents related to the employees’ registration in the Brazilian Social Security System (Regime Geral de Previdência Social); and (vi) the survey questionnaires from the Brazilian Institute of Geography and Statistics (Fundação Instituto Brasileiro de Geografia e Estatística, “IBGE”). The new legislation established that the categories should be based on the employees’ self-classification within previously established groups. Employers are encouraged to utilize the five categories used by IBGE for the purposes of classifying the Brazilian population in terms of race or color in their documents and records: (i) Afro-Brazilian; (ii) Multiracial; (iii) White; (iv) Indigenous; and (v) East Asian. It is important to note that the new rule applies to both the public and private sectors, and that the survey of the percentage of occupation by ethnic and racial segments in the public sector will serve to supplement the Brazilian National Policy for the Promotion of Racial Equality (Política Nacional de Promoção da Igualdade Racial, “PNPIR”), based on IBGE surveys which shall be conducted every five years.   Affirmative Action in the Private Sector: Opportunities and Legal Parameters Affirmative actions, in the context of labor and employment relations in Brazil, are those based on internal and non-mandatory policies that can be adopted by employers in order to contribute to the promotion of equitable conditions for equal opportunities, inclusion and diversification of people or groups subject to discrimination, such as the afro-Brazilian community, women and LGBTQIA+ population. These policies are not considered discriminatory, and are in line with the employer's social responsibility. It should be noted that there is no legal obstacle for the adoption of affirmative actions aimed at minority groups, and that internal policies of this nature are in compliance with Brazilian constitutional and labor provisions as well, with the promotion of decent work, which is understood as work free from discrimination and capable of providing a dignified life. Affirmative action aimed at minority groups in the private sector can be adopted through selective processes aimed at minority groups, as well as setting internal goals for the number of employees that are part of minority groups hired or in leadership positions.   Collection and management of DEI data by employers DEI data is classified as sensitive data in Brazil, as the Brazilian General Data Protection Law (“LGPD”) classifies personal sensitive as personal data on racial or ethnic origin, religious conviction, data concerning health or sex life, genetic or biometric data, when linked to an individual. Thus, the collection and management of this kind of data must comply with the applicable provisions of the LGPD. In the light of the above, even though the legislation allows data to be collected on a voluntary and anonymous basis during the course of employment and hiring processes, individual consent for DEI data collection must come from a specific, formal, individual agreement, which must contain certain highlighted information with respect to the specific purpose of the data collection and management. Considering the scope of this data, it is highly recommended that it be collected only for reasonable and justified DEI purposes, in connection to the adoption of initiatives aimed at the promotion of equity and inclusion in workplace. Specific internal DEI policies to regulate the initiatives are also recommended to mitigate risks related to any potential claims that DEI initiatives are discriminatory.   DEI Enforcement and Labor Authorities’ Inspections DEI matters in Brazil involve optional policies based on employer’s social responsibility and mandatory requirements foreseen in labor legislation to be observed by employers, related to equality and non-discrimination in workplace. It is important to note that discriminatory conduct is prohibited by Brazilian law, especially in the context of employment relationships, as the Brazilian Federal Constitution provides for equality in access to job positions to all individuals without distinction, and they have the right to freely exercise any job or profession provided that professional qualifications are met. In this context, it is important to note that Law No. 9,029, of 1995, forbids the adoption of any discriminatory and restrictive practice for the purpose of access to, or maintenance of, employment relationships. Law 9,029, of 1995, also provides that the termination of an employment relationship due to a discriminatory act allows the employee to be compensated for moral damage and, additionally, to choose between reinstatement, with full compensation for the entire period of leave, or double pay for the period of leave. Moreover, offensive acts practiced against individuals of racial minorities and/or that are of the LGBTQIA + community, in the light of the decision rendered by the Brazilian Supreme Court, may be deemed as racism, as provided by Law No. 7,716, of 1989, which include: (i) denial of employment; (ii) restricted access to the workplace; (iii) failure to provide the necessary equipment to carry out the work on equal terms with other workers; (iv) prevent the employee from advancing or not being granted any other form of professional benefit; and (v) different treatment in the workplace, especially in terms of salary. Finally, compliance with labor legislation with respect to matters involving equality in workplace is subject to inspection by labor authorities, such as the Ministry of Labor and Employment and the Public Labor Prosecution Office, which may apply fines and/or require the adoption of measures under terms of adjustment of conduct. Additionally, non-compliance with legislation requirements and violence towards minority groups may lead to individual labor lawsuits filed before labor courts, with claims of indemnification for moral and other damages.   Final considerations The regulation of DEI matters in workplace has increased, bringing with it new requirements set forth by legislation that complicate DEI matters. In this context, the development of DEI initiatives by employers has become not only a matter of acquiring and retaining talent and the construction of a diversified workplace without discrimination, but also a matter of legal compliance.   Authors:  Aline Fidelis [email protected]   Thiago Garcia [email protected]   Isabela do Val [email protected]   Isabella Fraia [email protected]