Labor and employment

The extension of paternity leave and maternity leave for cases of birth of twins has generated recurrent discussion, although a bill on the subject was already rejected in 2009.

Currently, paternity leave is five days and can be extended for a further 15 days if the employer is enrolled in the Citizen Company Program, under the terms of paragraph 1 of article 10 of the Transitional Constitutional Provisions Act and article 1, II of Law No. 11,770/2008. However, such periods have been the subject of litigation before the Judiciary because they are considered insufficient in some special situations.

The Federal Circuit Court of Appeals of the Southern Circuit has been more flexible in this regard and has in some cases recognized the right to extend the period of leave to parents of twins. The decisions were based on the Principle of Integral Protection of Children, on the argument that two children need two parents at their disposal: if only one child has the mother available for 180 days, the second child would have the right to have the father available for an equal period of time.

Along the same lines, a judgment was recently handed down by the 1st Federal District Court of Florianópolis, in case No. 5009679-59.2016.4.04.7200/SC, filed against the Federal Attorney General's Office. After an analysis of the principles and history behind the institution of maternity leave, the federal judge granted an extension of paternity leave based on an analogical application of article 392-C of the Consolidated Labor Laws (CLT), which guarantees to employees who adopt or obtain legal custody for adoption purposes enjoyment of leave for the whole period of maternity leave.

There is, however, much controversy on the subject. In a similar case, the Judiciary of the State of Pernambuco rejected a request for extension of leave made by a future father of twins during the mother's pregnancy. It was argued that there was no legal basis for extending the leave, which led the father to reduce his work day and resort to the help of relatives and nannies.

His petition was reassessed and granted relief in a recent decision on appeal, when his daughters had already been born for ten months.

Demands such as these are still not frequent in the Labor Courts, but the precedents of the circuit courts of appeals of Santa Catarina and Pernambuco reveal a possible tendency in the extension of paternity leave in specific situations, such as when it is understood that there is unequal legal treatment of a single baby who has the mother at his full disposal, compared to twins who would share the mother's attention during the leave.

In cases of extension of paternity leave, employment agreements are suspended for the period, and the employee cannot be terminated.

Every labor relationship is based on mutual trust between the parties. Every day, new products are created, new production techniques are implemented, and new markets are pursued. Employees have access to information that, if disclosed, may jeopardize the earnings of their companies and their very existence.

Trust, honesty, and loyalty in relationships with employees are therefore essential for companies to pursue their business strategies without fear that their practices will be disclosed to competitors and eventually undermine their relationship with the market.

Information of this nature is automatically protected during the course of the employment contract, which is governed by the principle of trust between the parties, but what happens after termination of the contract?

The Consolidated Labor Laws (“CLT”) or any other labor legislation has no answer to this question, but it can be found in the Industrial Secrets Protection Law (Law No. 9,279/96), which, in article 195, XI, determines that one commits a crime of disloyal competition when one "discloses, exploits, or uses, without authorization, knowledge, information, or confidential data, usable in industry, commerce, or the provision of services, excluding that which is within public knowledge or which is obvious to a person skilled in the art, to which he had access through a contractual or employment relationship, even after the end of the contract.”

Thus, most standard employment contracts already provide for a confidentiality clause that transcends the employment relationship. It so happens that, in view this legal provision, two other questions are posed: does this restriction prevent employees from obtaining a new employment position, thus violating the principle of free professional practice provided for in article 5, XIII, of the Constitution? From a technical point of view, what information should be considered confidential?

The answer to the first question is not simple. Employers often insert in the body of the employee's employment contract, regardless of the time, a non-competition clause, which may be understood as similar to the confidentiality clause, although different. If the jurisprudential understanding were that the two clauses resemble each other and should be performed together, there may be no limitation on the employee without due consideration.

Fortunately, the majority view in labor case law is that the two provisions are different, principally because the impediment on disclosure of the confidential information of the employer does not restrict the former employee's professional activity after termination of the contractual relationship, because the information is protected by law, and the performance in a competing company of similar or even identical functions to those previously performed is not protected by the confidentiality clause.

Since Law No. 9,279/96 itself defines what is considered confidential information, if the employee discloses information of public knowledge or that a specialist would be able to obtain for himself, it does not infringe on any provision of law. That is what is found from a simple reading of article 195, XI, of the Law. However, this framework covers any information that may be characterized as an industrial secret. In theory, if the employee discloses the values ​​of wages or benefits of the company, this could be considered breach of an industrial secret, given the scope of the principle.

The STJ has already handed down a decision to the effect that a protected industrial secrecy is that which is expressed by the employer during and after the employment relationship, such that indication of the points of the contract subject to protection must be carried out by the employer, lest that point not be protected in relation with its employees.

In the judgment rendered in the appeal pursuant to internal rules of court in an interlocutory appeal in the context of Special Appeal No. 21.167 RS, of the authorship of Justice Sidnei Beneti, in which the practice of unfair competition by a former employee was discussed because he had used confidential information obtained during the period in which he was employed by the appellant, it was emphasized that the employment contract entered into with the nonmovant party did not show any exclusivity and confidentiality clause for the information considered confidential by the employer. As a result of this omission, it was concluded that no crime of unfair competition occurred.

Therefore, it is recommended that employers draft in the contract an express clause containing the confidential information protected by industrial secret (Law No. 9,279/96).

Another controversial point on the subject is the jurisdiction to adjudicate suits whose cause of action relates exclusively to this subject. If the suit only deals with this issue, the jurisdiction is that of the Common Justice because it is an infraction against Law No. 9,279/96. However, the Labor Courts have constantly invoked this jurisdiction when there is another proceeding in progress involving both parties and it deals, even if remotely, with the same issue.

It should also be noted that ordinary suits have been accepted, with a petition for preliminary injunctive relief, to prevent the disclosure of confidential information in a preventive manner, provided that the imminent risk of disclosure of this information by the employee is demonstrated.

The subject is controversial and brings about many questions based on different perspectives. However, more and more lawsuits on this topic have reached the courts seeking to protect the industrial secrets of employers vis-à-vis their former employees.

Edição extraordinária

(Retroactive?) Change of the Labor Debts’ Monetary Adjustment Index

Based on decisions issued by the Brazilian Federal Supreme Court (STF) according to which the Reference Rate (TR) did not represent the actual depreciation of the Brazilian currency within a given period of time, the Brazilian Superior Labor Court (TST) decided that the use of the TR as the monetary adjustment index of labor debts prevents the complete recovery of the employees’ labor credit and jeopardizes the effectiveness of the judicial protection and court procedures.