United States: Impacts Of Brazil's New General Law Of Data Protection On Labor Relationships

Last Updated: July 15 2019
Article by Mayer Brown

The New General Law of Data Protection (LGPD) innovates how the personal data must be processed by companies in Brazil. Inspired by the European General Data Protection Regulation (GDPR), the Brazilian law establishes the parameters according to which companies can process personal data, that until then was not properly regulated by applicable legislation. This means that companies will need to perform significant changes in order to comply with the new legislation.

The non-compliance with the legislation may result in a fine of 2% of the companies' local income, up to BRL 50,000.000,00, but above all, it may impact the company's image and the reliability it inspires in the market.

Therefore, it is essential that the Legal and Human Resources departments are trained and capable of performing the processing of personal data according to the legal parameters. Some relevant points that should be noted are:

1) 10 Hypotheses in which the processing of data is allowed

  1. upon consent of the holder;
  2. for compliance with a legal or regulatory obligation by the controller;
  3. by the government, for processing and shared use of data necessary for the execution of public policies established by laws and regulations or established by contracts, agreements or similar documents;
  4. for studies to be developed by a research entity, in which it must be ensured, whenever possible, the anonymization of personal data;
  5. when necessary for the execution of a contract or preliminary procedures related to a contract, in which the holder is one of the parties, upon his/her request;
  6. for the regular exercising of rights in judicial, administrative or arbitral proceedings, the latter under the terms of the Arbitration Law;
  7. for the protection of life or physical security of the holder or third party;
  8. for health protection, in a procedure performed by health professionals or by health authorities;
  9. whenever necessary to meet the legitimate interests of the controller or of a third party, except in case the  fundamental and freedom rights of the holder require the protection of personal data; or
  10. for credit protection, including in what regards the specific legislation.

CONSENT: Companies shall evaluate the need of obtaining consent. This is because the consent must be obtained in a free, clear and explicit way with specific and transparent purpose, otherwise its invalidity may be alleged. In addition, the holder has the right to revoke the consent at any time.

2) Data collection and protection

The LGPD resulted in an important innovation in comparison to the GDPR, which is the possibility of retaining data after its processing, such as in the case of former employees, provided that it has the following purposes:

I – Compliance with a legal or regulatory obligation by the controller;

II – Studies conducted by a research entity, ensured whenever possible, the anonymization of personal data;

III – Transfer to a third party, provided that it is in accordance with the legislation in force; and

IV – Exclusive use by the controller and the data must be anonymized. The access by a third party is forbidden.

Except in those cases, the data must be deleted after processing. In case of resumes received by the company, a reasonable maximum period for the retention of data must be observed, which shall occur in a consented and pre-determined manner, considering the conditions of the job  for which the candidate has demonstrated interest and decided to provide the personal data by submitting the resume. The Retention Policy for personal data is certainly of great importance for companies.

3) Employee data protection

Pursuant to the new Law, responsibilities have been assigned for those who process the data of any individual. And, as a result, adopting this concept into employment relationships, it is evident that employers - or even services borrowers- will have to proceed with the proper collection, storage and processing of data from those who render services on their behalf.

The use of employee's data by companies is a common practice, for example, for establishing internal policies and for analysis of benefits to be granted by companies to their employees.

That is to say that since the selection process (when the individual provides the company a large number of data), passing through the hiring (when several documents will be provided and it must be required the prior consent of the data processing, i.e., through an explicit clause in the employment contract), until the moment of termination.

The retaining of employee data by companies after the termination of the employment contract is lawful and established by the LGPD, in accordance with labor legislation, as such data may be necessary for the fulfillment of legal obligations or even for the regular exercise of rights in judicial, administrative or arbitration proceedings.

LABOR STATUTE OF LIMITATION: The labor statute of limitation must be considered for data protection purposes. According to the Federal Constitution, the right to file a lawsuit expires in 2 years after the termination of the employment contract and employees may claim rights related to the past 5 years counting from the date of filing the lawsuit.

It is important to remark that companies will only be able to share the data of these employees with third parties (i.e., for bank accounts, health plans, corporate cards) if these limits are observed, otherwise, it may be characterized the violation of LGPD and labor legislation due to a potential abuse of right.

In addition to the necessary attention regarding the hypotheses and procedures for the processing of employee's data, a particular attention should be given to personal data considered as "sensitive data", which shall only be processed when strictly necessary.

4) Sensitive Data

Sensitive data, which was already protected by Brazilian legislation and jurisprudence rendered by Brazilian labor courts is currently also considered as data of maximum protection by the LGPD. The processing of any information of this type will be more restrict, which limits  the use of such information, for example, in labor lawsuits. It is worth noticing that part of the labor decisions rendered by Brazilian courts used to held the understanding  that the use of confidential personal data by companies in their defenses was abusive.

As from August 16, 2020, when the LGPD will come into force, all companies shall review such abusive practices in its employment relationships, because, in addition to breach the Federal Constitution and labor legislation, they will also be violating the protection of sensitive data of the employees, whenever the use or operation of the data does not enter into any of the hypotheses that would legitimize its processing.

The LGPD will require companies to re-evaluate: (i) their security practices; (ii) internal policies; (iii) codes of ethics, among others, including the actual need to process certain sensitive data.

GOLDEN RULE: Evaluate the real necessity for the company to process sensitive personal data. If it is not strictly necessary, the company will be taking unnecessary risks, which may reach the civil, labor and even criminal.

5) Outsourcing

The new labor legislation permits companies to outsource its core business, i.e., the ones considered essential for the operations of the company, which was also confirmed by the Federal Supreme Court (STF).

Therefore, in cases of outsourcing, controversial situations may arise due to possible confusion between actual beneficiaries of these data in employment relationships or persons authorized to process the data of employees or outsourced workers.

SUBSIDIARY LIABILITY x JOINT LIABILITY: Despite the liability of the services borrowers for not paying labor credits is subsidiary, LGPD expressly sets forth that the liability for data protection and processing shall be joint. Therefore, the services borrower and the outsourcing company must adopt measures together for ensuring the employee data security and protection. 

The services agreements executed with outsourcing companies shall be carefully drafted for establishing the responsibilities of each party - services borrower and outsourcing company - not only for preventing labor liabilities, but also to improve the management of data protection by all parties, mitigating their liability, according to the LGPD.

The services borrowers shall be even more diligent when hiring outsourcing companies for ensuring its realibility not only in the financial and labor-related aspects, but also that these companies are reliable and concerned about the regular processing of their employees' data.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2019. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
In association with
Practice Guides
by Mondaq Advice Centers
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Sheppard Mullin Richter & Hampton
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions