Introduction

Under Brazilian law, the courts can schedule public hearings in order to invite legal experts and the general public to debate important matters to be decided by the courts.

The Superior Labour Court has organised a series of public hearings to discuss relevant labour matters. The latest public hearing was held on June 28 2016 to debate whether asking job candidates to provide clearance certificates for criminal records constitutes grounds for moral damages.

The Superior Labour Court is considering at least two cases in this regard and thus requested a public hearing to gather information from professors in the field, unions, lawyers and other specialists before issuing its decisions.

Judicial precedents

According to recently enacted Brazilian procedural law, the appeal courts can rule on similar and repeat cases by issuing a judicial precedent. These precedents block appeals based on the same or similar arguments. Naturally, these precedents serve as guides for lower labour courts and parties and help to reduce the number of frivolous appeals.

The Superior Labour Court is preparing judicial precedents on the following issues:

  • whether requesting clearance certificates for criminal records constitutes moral damages;
  • overtime for public and private bank employees;
  • attorneys' fees;
  • the applicability in labour proceedings of the penalty set out in Article 475-J of Law 5,869/73 (the corresponding article of the recently enacted Brazilian procedural law will be discussed);
  • health hazard allowance with regard to telemarketers' use of headphones; and
  • subsidiary liability with regard to construction sites (Judicial Precedent 191 of the SBDI-1, limited to individuals and micro and small businesses).

Considerations

In light of these rulings and related public hearings, attorneys may have to alter their approach to litigation. As such, they must be prepared to attend public hearings and present effective arguments. It is expected that companies will join forces through industry associations to engage legal experts, experienced attorneys and labour law professors in order to defend their legal positions before and during public hearings.

Companies may also hire legal experts separately to increase their chance of presenting successful arguments.

Attorneys will be responsible for precisely demonstrating that their case falls within the scope of the relevant judicial precedent. Further, they must build a strong case in the discovery phase, including securing evidence to support any arguments that may be made on appeal.

These changes also raise issues about how discovery hearings should be handled – in particular, how to present evidence to the appeal courts demonstrating that a case is substantially similar or entirely different from the facts on which the relevant precedent is based.

In short, companies and attorneys must adjust their strategies and approach discovery hearings and appeals cautiously when dealing with a judicial precedent.

For further information of this topic please contact Dario Abrahão Rabay at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (drabay@mattosfilho.com.br). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.

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