The Section Specialized in Individual Disputes (SDI-1), a body within the Superior Labor Court (TST), decided, by a majority, that the requirement of certificate of absence of criminal records of employees and/or job candidates constitutes a moral damage subject to compensation only when it (i) involves discriminatory treatment or (ii) is not justified by a legal provision, the nature of the position, or a special degree of trust required for the position.

Because the written decision has not yet been drafted by the reporting judge, the information disclosed is based on a plenary session held on April 20th.

The decision came about as a ruling on repetitive appeals involving Alpargatas S.A., but, even though it does not have force of law, it should serve as a guideline for all companies. In addition, the understanding adopted by the TST will be applied to all suits that deal with a similar matter and that are pending decision by the labor judiciary.

The issue, long since discussed by the TST, had already led to a public hearing in 2016 in order that Labor Law scholars (lawyers, prosecutors, judges, among others) could give their opinion on the controversy.

After long discussion, the prevailing theory is that the requirement for criminal background checks outside of the situations provided for in the plenary session of the TST constituted presumable moral damage.

It is also necessary to consider whether the TST will indicate in the decision rendered what would constitute "discriminatory treatment," a legal concept that is indeterminate and therefore subject to different interpretations by those tasked with enforcing the law.

In addition, it will be important to inquire whether the possibilities that authorize the requirement of a certificate indicating no prior criminal record mentioned in the decision will constitute an exhaustive or merely exemplary list.

Considering the protectionist tendency of the labor courts, it seems more prudent to consider the list an exhaustive one and applicable applies only to the following situations: (i) domestic servants; (ii) caregivers for children, the elderly, and people with disabilities in day care centers, nursing homes, or similar institutions; (iii) freight drivers; (iv) agribusiness employees who work in handling of cutting and drilling equipment; (v) banking and the like; (vi) workers who work with toxic substances, drugs, and weapons; and (vii) employees who work with sensitive information.