Requirement for Foreign Employees to Work
Whenever a foreigner is transferred to Brazil and/or retained by a Brazilian company to render services in Brazil, an appropriate work visa/permit must be requested in advance. If the foreigner will bring his/her dependents, it is necessary to apply for a residency permit based on family reunion. The proper visa depends on the activities that will be performed in Brazil. After the applicable visa is selected, the Brazilian entity will have to comply with the applicable rules concerning the relationship to be maintained with the foreigners.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
A foreign employer needs to establish or work through a local entity to hire an employee in Brazil, because only local companies are able to comply with all labour rights and obligations, which include payment of labour and social security charges, as well as deduction of the applicable income tax.
Limitations on Background Checks
There is no specific provision in Brazilian Labour Laws either prohibiting or authorising the employer to perform background checks on its prospective employees. However, protection of personal information pertaining to any Brazilian citizen is granted in a broad scope by the Federal Constitution, which grants protection and inviolability of any citizen’s intimacy and personal life. The Federal Constitution also prohibits any kind of discrimination. In addition, the law prohibits any discriminatory or restrictive measure for the admission of an employee or maintenance of employment based on sex, origin, race, color, marital status, family situation or age. There are only a few exceptions to the general rule that justify some types of background checks (i.e. criminal check for bank employees). In view of the above, currently, as a general rule, Brazilian Labour Courts understand that some type of search that a company performs regarding its prospective employees’ information characterises discrimination, thus being illegal, and entitling the individuals to an indemnification for moral damages. Therefore, in order to evaluate the candidate’s background, and in order to make a hiring decision, the company should only use public information about the individual.
Restrictions on Application/Interview Questions
With regards to the employment application and interview questions, as mentioned above, Law 9.029/1995 prohibits any kind of discriminatory practice which may limit the access or the maintenance of employment due to sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, age, among others. Therefore, the employer must avoid questions like “Are you married?”, “Do you have any children?’’, ‘’What is your nationality/religion/marital status?’’, among others that may be discriminatory on an employment application or during an interview. Under Law 9.029/1995, with respect to women, the requirement of statements, examinations or similar measures related to sterilisation or state of pregnancy are considered discriminatory. This law also prohibits inducing or instigating birth control.
In addition, the Brazilian General Data Protection Law, so-called “LGPD”, was enacted in August 2018 (Law 13.709/2018) and has been in force since September 2020. Per the LGPD, personal and sensitive data can only be processed on an underlying lawful basis. Thus, companies will have to be careful not only with the personal and sensitive data of employees that is processed, but also the data of candidates (e.g. résumé, background checks, among others).