by Isabel Franco
Demarest e Almeida Advogados
In Brazil, the question on whether or not the investigation of an employee by the employer is legal, as well as the restrictions on such investigation, have been discussed for many years. Although there are no specific rules on this matter, the employee is protected by the human and social rights established in the Federal Constitution and the Brazilian Labor Code (Consolidação das Leis do Trabalho – CLT). The investigation usually covers personal searches, e-mail verification and behavior analysis.
The Brazilian Labor Courts acknowledge that searches of personal effects may be made by another employee of the same gender and in all events with due regard to the privacy, in the case of justifiable and reasonable suspicion.
The employee's internal e-mail is considered a work tool and may be accessed by the employer. The e-mail account cannot be used for illegal purposes, and personal use is allowed provided that it is not excessive and does not overload the employer's servers.
Where a suspicion leads to employment termination for cause, the employer may place the employee on paid leave while the investigation is carried out and, if the suspicion is confirmed, the employee should be immediately terminated. Otherwise the termination may be regarded as abusive.
The Brazilian law also provides for some events of job tenure, in which the employee may be terminated for cause only. The employer is allowed to terminate an employee during the period he holds the position of Union's Principal only if it files a lawsuit for investigation purposes and proves in court that the employee is being terminated for cause.
An employee terminated without proper investigation may file a labor claim seeking that the termination for cause be converted into termination without cause (which will entail the usual legal unemployment compensations to the employee, not to mention compensation for pain and suffering, even if based on discriminatory grounds). These claims to the Labor Court have become increasingly common.