Much is debated about the employer's right to require a negative criminal record certificate from candidates for vacancies offered or whether the distinction of these by such criterion would entail moral damages.
Given the great controversy generated by the theme, in 2017, the 4th Panel of the Superior Labor Court raised a repetitive appeal incident provided for in Articles 896-B and 896-C of the CLT to deepen the theme.
On the occasion, the Attorney General's Office pointed out that work is an important instrument of resocialization and that limiting people's access to the professional market through the existence of criminal records would lead them back to illicit activities as a means of subsistence.
It was also pointed out that the requirement of a negative certificate of criminal record would be contrary to various constitutional principles, such as the dignity of the human person, honor, the presumption of innocence and privacy.
On the other hand, Professor Gabriela Neves, representative of the Research, Labor, Constitution and Citizenship Group of the University of Brasília, recalled that Article 202 of the Criminal Execution Law restricts the use of criminal background information "to instruct proceedings for the practice of a new criminal offense or other cases expressed in law".
In fact, there are laws that allow the requirement of background certificates, such as interstate road drivers (Law 7.102/83 and Resolution 1.971/07 of ANTT) and employees in companies of surveillance and transportation of values (art. 16, VI, law 7.102/83).
However, despite the inexistence of the law in this sense, the Attorney General's Office expressed a justifiable understanding of the requirement in the relationship of domestic employment, in the case of the care of babies and young children. It should be noted that Law No. 5,859/72, which provided that the domestic employee should present "a certificate of good conduct" to the employer, was repealed in 2015.
In view of these and other arguments raised, the TST decided that the requirement of a criminal record certificate is legitimate and does not generate moral damages when it is based on law or because of the nature of the work or the degree of trust required, as specified below:
"REPETITIVE MAGAZINE FEATURE INCIDENT. THEME No. 0001. MORAL DAMAGE. REQUIREMENT OF CRIMINAL HISTORY CERTIFICATE. JOB SEEKER
One, i'm sorry. It is not legitimate and characterizes moral injury the requirement of Certificate of Criminal History of job seeker when translating discriminatory treatment or is not justified by reason of provision in law, the nature of the office or the special degree of fidúcia required.
Two of them. The requirement of a Certificate of Criminal History of a job seeker is legitimate and does not characterize a moral injury when based on an express legal provision or justified by the nature of the office or the special degree of fidúcia required, such as domestic servants, caregivers of minors, the elderly or disabled (in day care centers, nursing homes or related institutions), road cargo drivers, employees working in the agroindustry sector in the management of sharp, bankand related work tools, workers who work with toxic substances, narcotics and weapons, workers who work with confidential information.
Three of them. The requirement of a Criminal History Certificate, when absent from any of the above justifications, characterizes moral damage in re ipsa, liable to indemnification, regardless of whether the job seeker has been admitted or not" (TST-IRR-243000-58.2013.5.13.0023).
Despite the establishment of an incident of repetitive recourse and the positioning of the TST, this theme continues to be recurrent in the Labor Court, because it is very difficult – not to say impossible – to find consensus as to which professions that, by their nature or confidence required, would justify and legitimize the requirement of filing a negative criminal record certificate.