Important and/or distinctive aspects of recruitment legislation in Brazil
The Brazilian Superior Labour Court has made clear that the searching of databases provided by a service provider, to determine the criminal background of candidates, is unlawful.
On the other hand, a request for a police clearance certificate made directly to a candidate may be acceptable. This should be requested for roles / positions where a criminal background check is relevant, taking into consideration the requirements and responsibilities of the role / position.
It must always be borne in mind that when the request for a criminal background check is made and such a check is not relevant for the job, the Superior Labour Court may see this as the employer casting doubt on the honesty of a candidate, denigrating his/her dignity and/or challenging his/her right to privacy and honour, all of which are values protected under the Brazilian Constitution.
Credit checks may give rise to claims for moral damages; for example, the State of Rio de Janeiro expressly prohibits companies excluding applicants from the selection process solely on the basis of a bad credit history.
There is no legislation or case law in relation to social media searches. Employers should bear in mind that whilst they may have the right to access some personal data provided by public institutions, such checks may breach an employee's right of honour and a private life, which are inviolable rights under the Brazilian Constitution. Therefore, employers should advise candidates beforehand that there will be checks in relation to the candidate's social media profile and should obtain the candidate's express consent for such checks.