Application of the LGPD in Labor Relations

In 2018, the LGPD was published, a law that has as its main objective the protection of the freedom and privacy of the natural person, which since 2022 has become a fundamental right of every citizen.

Because it is such an important topic, the application of this law should occur whenever there is the collection of personal data from individuals, as well as the storage and use of this data, such as in consumer relations and Labor Relations, which is the segment that we will focus on in this article.

In labor relations, the LGPD comes to confirm the labor standards regarding the legal responsibility that the employer/company has in relation to the data of its employees/service providers, to improve the security of the storage of this data (by physical or digital means), to ratify the purpose of the employee/service providers ‘ data with the contractual clauses of their employment contract, or the contract for the provision of services, and to confirm the good faith of the employer/company with the processing of this data.

The application of the LGPD must be respected regardless of the work regime adopted, whether CLT model, or for a service provider.

It is important to bear in mind that the application of the LGPD must be respected and used throughout the contractual flow in labor relations, that is, from the selection process, the law must be respected and the standards applied.

Pre-contractual phase: this phase, also known as the selection process, is the first contact of the company with the candidate. Thinking about it, in the pre-contractual phase, the collection of any data that may generate discriminatory criteria among candidates, such as blood tests, pregnancy tests or consultation with credit protection agencies, is prohibited, respecting the principle of “non-discrimination”.

To ensure the protection of candidates who have not been chosen, the company must be attentive and inform all those not selected about the policy of using the data that has been provided, and more importantly, what the company will do with the data of these not selected.

Contractual phase: in this phase the selected candidate will become an employee or service provider of the company that hired him, and therefore, he must have knowledge about the company’s data processing policy, about the use and storage of these data, and must give his consent to this policy and its application. It is important to note that these lgpd clauses must be highlighted in the documents, thus guaranteeing the principles of purpose, transparency and security.

Post-contractual phase: this is the phase of dismissal of the employee/service provider of the company, which regardless of what was the reason for the contractual termination, must also observe and respect the LGPD.

In the case of Labor Relations, there is an obligation to keep documents by a legal imposition, for example, in cases of labor actions, in which companies have a legal guarantee of keeping evidentiary documents of former employees/service providers within the statute of limitations of the right to file labor action.

With the validity of the administrative sanctions imposed by the LGPD, it is of paramount importance that all companies invest in information technologies, training for the use and processing of personal data in their departments and that they observe the application of the LGPD in the storage of these data. Thus, the performance of a lawyer specialized in LGPD becomes essential for the company to be adequate and not suffer any punishment.

Giovanna Luz Carlos-lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure at Faculdade Damásio De Jesus. Lawyer at TM Associados.