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