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The LGPD and labour relations in Brazil

Non-observance of the LGPD (General Data Protection Law) will give rise to administrative sanctions imposed by the National Data Protection Authority as from August 2021, as determined by article 20 of Law 14.010, which modified the text of article 65 of Law 13.079.

In spite of this, many authorities are already imposing or seeking to impose penalties for failure to comply with the LGPD and are taking court action in this respect. Moreover, there is nothing to prevent data subjects from claiming compensation in court, as well as coercive measures to enforce compliance with the LGPD.

In the context of labour relations, the LGPD is firmly present in the three stages (pre-contractual, contractual and post-contractual), although there are no specific regulations in this respect. Apart from the direct relationship between the company, the candidates for job vacancies offered and its own employees, the LGPD is also present in relations with the employees of outsourced companies.

For the reasons set out in the preceding paragraph, companies must adapt as soon as possible, creating procedures and policies, adjusting their work contracts and agreements for services with independent contractors, training and instructing their work force regarding the law and the care necessary in the treatment of data, thereby avoiding the formation of administrative and judicial liability and the exposure of their name, brand and reputation.

At the pre-contract stage, companies will have to adjust their recruitment and selection processes, deciding whether resumes not used are to be discarded or kept in their database for future vacancies, obtaining, in the latter case, the express consent of the candidate to do so. The companies must also consider that the recruitment and selection processes may be subject to investigation by the competent authorities and/or judicial discussion by these same persons or by the candidate himself, and, in this respect, the treatment of candidates’ data may constitute evidence for their defence, the regular exercise of rights.

In the course of the employment relationship, the applicability of the LGPD is vast, since the employer is obliged to provide personal as well as sensitive data of its employees in order to comply with legal obligations, such as for the E-social, for the DCTFWeb, for the CAT, for the obligatory Occupational Health and Safety Programmes, for the labour inspectors of the Special Secretariat of Social Security and Labour and of the Federal Revenue, unions and class entities, among others.

The employer uses the data of its employees, also, in order to comply with contractual obligations, such as for the provision of benefits, health and life insurance, agreements in general with other companies etc., constituting, therefore, the regular exercise of rights, which strictly exempts it from obtaining the express consent of the employee, provided of course that such benefits are in the latter’s interests or result from a regulatory provision.

The employer may also be obliged to use such data in administrative or judicial proceedings, as determined by the supervisory body or judge, in which case authorisation to supply such information from the employee is not required, since this undoubtedly constitutes a regular exercise of a right.

In the event of an occupational accident or health problems that justify the adoption of measures by the employer for the protection of the life and physical safety of the data subject, in this case, the employee, the company will also have to use his data.

It is essential to mention, if only briefly, the matter of the employee’s consent, since a trend of opinion has already been formed on this point, not only in Brazil, but also abroad, to the effect that it is inapplicable, as a rule, to employment relationships, given the worker’s situation of “hypo-sufficiency” (the weaker party). On this subject, we will express our views in further detail in a future article.

On termination of the employment, the employer should, strictly speaking, eliminate the personal data of its employee, since their purpose has been achieved or they are no longer necessary. However, considering that many of these data may be subject to analysis by the Brazilian authorities and/or constitute evidence in legal proceedings that may be brought against the company, including by the employee himself, they may be stored, for compliance with legal obligations or the regular exercise of rights, for the period in which they may be required; these are situations that, we repeat, do not require consent of the data subject.

The retention period could, in principle, be standardised according to the two-year and five-year limitation periods that apply to the employment relationship. However, there are situations that may exceed these periods, such as cases of accidents at work (including professional and occupational diseases) and death of a worker leaving minor heirs, matters which should be considered when the employer sets the parameters for the storage and destruction of data.

These are the initial observations of our labour team regarding the impact of the LGPD on labour relations. We will continue to produce material on the subject, as there will be many challenges to be faced in the near future.

Maria Lúcia Menezes Gadotti
Partner in Labour Law Area – São Paulo
[email protected]

Chicago Partners Again Honoured as Notable Minorities in Law

For the second consecutive year, Crain’s Chicago Business has named partners Zulf Bokhari, Roderick Branch, and Robert Fernandez to its Notable Minorities in Accounting, Consulting, and Law 2020 list. The honourees are recognised for having “overcome challenges and bias to rise to the top of their professions” through both their practice work and efforts to advance diversity and inclusion.

Bokhari, a member of Latham’s Banking Practice, represents leading commercial and investment banks in the syndicated loan markets, often advising on cross-border financings for working capital, acquisitions, and other purposes. A profile published by Crain’s highlighted his recent representation of a major US bank on multiple transactions, including as lead agent/arranger and lender in US$2 billion revolving credit facilities for a global health care company and related financings for its European operations. Crain’s also noted his role on the advisory board of the Kellogg Institute for International Studies at the University of Notre Dame.

Branch, a member of Latham’s Capital Markets and Latin America Practices, advises on capital markets transactions, with a focus on securities offerings by non-U.S. issuers. His published profile featured Branch’s recent representations of IEnova, Mexico’s largest private-sector energy company, in an US$800 million bond offering, Aon in a US$1 billion senior note financing, Hyatt Hotels in bond financings of US$1.65 billion, and Cars.com in its debut US$400 million high-yield financing. Branch is the immediate past Chicago office leader of Latham’s Hispanic/Latin American Lawyers Group, and he leads the firm’s International Visiting Associate program, through which law firm associates join Latham full time for a year. In 2020, Branch was also named to the Chicago Symphony Orchestra board of trustees.

Fernandez, a member of Latham’s Real Estate Practice, specialises in financings, acquisitions, dispositions, joint ventures, commercial leasing, and real estate development. His profile in Crain’s noted his recent advise to institutional investors on joint ventures in connection with multifamily, student housing, industrial, and large mixed use developments. For example, he advised a hedge fund in connection with a large office tower lease in Chicago, and a real estate investment and hospitality management company on a joint venture to acquire a Las Vegas hotel and casino. Fernandez is a member of Latham’s Global Diversity Leadership committee and is Chicago office leader of the firm’s Hispanic/Latin American Lawyers Group. He also serves on the Civic Federation board in Chicago.

In addition to the trio being selected among the 2019 Notable Minorities in Accounting, Consulting, and Law honourees, Bokhari and Branch were also previously included in Crain’s predecessor lists of the Most Influential Minority Lawyers in Chicago in 2017 and 2018.

DLA Piper helps build pro bono culture in Colombia

New Perimeter, DLA Piper’s non-profit affiliate that provides long-term pro bono legal assistance in under-served regions around the world, recently taught an online seminar on pro bono to more than 30 undergraduate law students at the Universidad del Rosario in Bogotá, Colombia.

During the course, which was held on November 18, Lisa Dewey, DLA Piper’s pro bono partner and director of New Perimeter, and Sara Andrews, senior international pro bono counsel and assistant director of New Perimeter, spoke to the participating students about the importance of pro bono legal work and how they can get involved in pro bono over the course of their legal careers.

The project is part of an eight-year relationship between New Perimeter, the Universidad del Rosario and Fundación Pro Bono Colombia to encourage and help create a culture of pro bono in Colombia. Over the course of the collaboration, New Perimeter has sent lawyers to Colombia to teach law students and practicing lawyers about legal social responsibility, the use of pro bono to address unmet legal needs and increase access to justice, and the history of pro bono in the United States and around the world. This is the first time New Perimeter connected virtually with Colombian students.

“It is always a pleasure to speak to Colombian law students about pro bono,” Dewey said. “Even though we weren’t able to be there in person this year, it was exciting to connect virtually to hear about the important issues the students are passionate about and how they plan to use their legal degrees to make a difference in Colombia.”

Practical Completion and Defect Liability Period Under Nigerian Law

Though the date of practical completion is of great importance to a building project, it does not have a unanimous definition. Generally, the date of practical completion is not merely the date in which the Client takes over possession of the building. In fact, practical completion may be achieved without the Client taking over physical possession of the building.

Technically and legally, practical completion is the date when the responsibility of insurance, security and maintenance of the building passes from the Contractor to the Client; the Client pays the contract retention sum to the Contractor and the defect liability period begins to run.

A Construction Agreement may provide for practical completion of a building or it may be inferred from the conduct of the parties or deemed upon the happening of an event. The defect liability period is a period for the Contractor to rectify the latent defects it discovers in the building or brought to his attention by the architect or Client’s agent on the building project.

Practically, the date of practical completion of the building is the date in which the works are reasonably ready for its intended use even though there may be outstanding snags or defects. In essence, practical completion is achieved where construction is completed and there are no patent defects in the construction of the building.

It is easier to ascertain the date of practical completion where the Construction Agreement clearly spells out same. Most Construction Agreements usually provide for the architect or the Client’s agent on the project to issue a Certificate confirming practical completion of the works under the Agreement. But what happens where there is no Agreement defining the date or medium to signal practical completion or the architect or Client’s agent on the project refuses to issue a Certificate of practical completion of the construction works in the building even though same has been achieved?

In such an instance, practical completion would be deemed from the intention of the parties which can be inferred from their conducts. For instance, if the Contractor informs the architect or Client’s agent on the project that he has completed the construction works and the architect or Client’s agents submits a list of latent defects on the project to the Contractor, practical completion is deemed to have taken place and the defect liability period shall begin from that date.

Upon completion of the rectification works submitted to the Contractor by the architect or Client’s agent, the defects liability period shall come to an end and the Contractor will ordinarily not be liable to carry out further maintenance works on the building.

However, where there are patent defects on the project, it is the responsibility of the Contractor to rectify the patent defects on the building before practical completion will be deemed and the defect liability period begins. For instance if Mr Tanko Ahmed employ Main Construction Limited to construct a 4 storey building and upon completion of construction, the parties discover that the walls are cracked or the ceilings are licking, Main Construction Limited would have to effectively rectify the cracked walls and licking ceilings before practical completion will be deemed and the defect liability period would begin.

Again where there is no Agreement on the duration of the defect liability period, it may be deemed from the conducts of the parties. For instance, if upon practical completion, the Client informs the Contractor that he will take over possession of the project after the rainy season. The rainy season constitutes the defect liability period. The end of the rainy season signifies the expiration of the defect liability period and the Contractor will no longer be liable to carry out maintenance works on the building.

This is because the Contractor cannot maintain the building project indefinitely. Even the law does not expect that. In such a circumstance, after the rainy season, the Contractor should advise the Client to immediately take possession of the building because practical completion of the building has been achieved and the defect liability period has ended. The Contractor is legally entitled to withdraw from the building and send the keys of the building to the architect or Client’s agent.

Hogan Lovells commits to disability inclusion

Hogan Lovells has marked the International Day of People with Disabilities by announcing that it has become a member of The Valuable 500 – the largest network of global CEOs dedicated to diversity.

As a member of The Valuable 500 the firm commits to drive change and embed disability inclusion throughout the business. Delivering on its commitment to diversity and inclusion and responsible business is a strategic priority for Hogan Lovells, with ability inclusion a core focus the firm recognises is crucial to achieving the UN’s 2030 Sustainable Development Goals.

CEO Miguel Zaldivar said: “Inclusion of individuals with different abilities is a key focus of our firm. We have had a longstanding commitment to people of different abilities across the globe, and we are excited that our participation in The Valuable 500 will accelerate our progress. We want our people of all abilities to understand that Hogan Lovells is a place where they belong and can thrive.”

The firm has also become a signatory to the American Bar Association Pledge for Change: Disability Diversity in the Legal Profession, further affirming its commitment to disability diversity. Pledge signatories recognise that diversity is in the best interests of their organisation, the legal profession as a whole, and the clients they serve. By becoming a signatory Hogan Lovells commits to encouraging others in the legal industry to follow suit.

In the UK, Hogan Lovells is a Disability Confident Committed employer, and has a long-standing relationship with the British Paralympic Association, being a Gold Partner and the Official Legal Services Provider. In addition, the firm supports British para-sport through its Nicholas Cheffings Para Athletes Bursary and investment in their ambassador and Paralympic, world, European and Commonwealth champion, Ollie Hynd MBE.

Hogan Lovells also provides pro bono legal advice to clients including GB SnowSport, Great Britain Wheelchair Rugby, the International Wheelchair Rugby Federation, UK Boccia Federation, the International Boccia Federation, the International Paralympic Committee, and the Japanese Para-Sports Association.

In the run-up to the re-scheduled Tokyo 2020 Summer Paralympic Games, the firm is sponsoring the Japan Riding Association for the Disabled, working in partnership to raise awareness in Japan of people with disabilities and the need for more inclusion of the disabled in sport. The firm’s sponsorship will provide para equestrian athletes with additional support as they pursue their sport.

Hogan Lovells also advises Movements for the Intellectually Disabled of Singapore on a range of matters, and has created an internship program recognised by The Luxembourg Diversity Charter, and in cooperation with Ligue HMC, to change perceptions of intellectual disability by welcoming interns in office support roles for an eight week period.

Caroline Casey, Founder of The Valuable 500, commented: “We are thrilled to welcome Hogan Lovells on board in the midst of the continuing pandemic. We believe in collaboration rather than competition and the multiplier effect of the collective impact of 500 leading CEOs and brands. I am confident that over the next decade, if the business community pulls together and stands united in ensuring disability inclusion is a central part of their leadership agenda, we can truly make a difference globally across the next decade.”

Oxana Balayan named among the Top 30 Women in Law

Hogan Lovells partner Oxana Balayan has been named in the ‘Women Who Will’ 2020 report by Obelisk Support and Next 100 Years who champion the talent and potential of women in law around the world. The award recognises the top 30 women of the legal in-house community, private practice and other change makers from within the industry, with nominations being accepted from senior General Counsel and other senior leaders in law.

Clients, including LSE listed Polymetal International plc, a global leader in the production of gold and silver, nominated Oxana Balayan for her ‘inspiring leadership’, ‘fantastic and innovative achievements’ and ‘legendary dedication to clients’.

Hogan Lovells commitment to diversity and inclusion is integral to our success as a global law firm. Oxana Balayan has been a poster-woman for gender equality in Europe and Russia for many years. Oxana leads the Corporate and Finance practice in Russia and CIS at Hogan Lovells, is a successful business woman, a mother of two great children, a marathon runner and a relentless gender equality fighter.

At Hogan Lovells, we fully support this report which aims to shine a light on talented individuals and on the gender diversity of leadership in law and why it matters. Hogan Lovells vision is to become the market leader in D&I, and to create an inclusive environment where people of all backgrounds have the opportunity to thrive and belong.