BRAZIL Law and Practice Contributed by: Caio Medici Madureira, Rodrigo Souza Macedo and Nestor dos Santos Saragiotto, Tortoro, Madureira & Ragazzi Advogados
Damages caused to the employer shall be compen - sated by the employee, if there is a contractual pro - vision to that effect, or if the damage was caused intentionally. If the form of compensation chosen by the parties is a monthly salary deduction, this shall be limited to 70% of the salary received, in order to ensure a minimum salary in cash for the worker.
work or competition. It is preferable that the clause be included at the beginning of the employment relation - ship, observing temporal and territorial limits, and a clear commercial justification is recommended. Unfair or excessively broad clauses may be consid - ered abusive and annulled by the courts. 3. Data Privacy 3.1 Data Privacy Law and Employment The General Data Protection Law (LGPD), Law No 13,709/2018, applies in the context of the employ - ment relationship, from the processing of a candi - date’s data to the termination of the employee. It is the employer’s responsibility, with the support of the compliance and legal departments, to observe the LGPD’s principles and adapt the company’s proce - dures as necessary to protect employee data, where applicable. This means safeguarding sensitive infor - mation and always allowing the employee to access their data; they can also request its portability or dele - tion, if applicable. The hiring of foreign employees must comply with Brazilian law in its entirety. Foreigners may not receive a salary higher than that of Brazilians performing the same function, and the company must first dismiss the foreign worker rather than terminate the contract with the Brazilian worker in the same position. The CLT provides in Chapter II, Section I, Article 352 et seq for a rule requiring a minimum of two thirds of Brazil - ian workers on the staff, which is therefore a limitation on hiring. Foreign workers must have the appropriate visa for the job, and, if the job is technical, their diploma must be validated via the Carolina Bori Platform. 4. Foreign Workers 4.1 Limitations on Foreign Workers
2. Restrictive Covenants 2.1 Non-Competes
Although there is no express provision in the legisla - tion, non-compete clauses are considered valid based on the principle of contractual freedom (Article 444 of the Labour Code – “Consolidation of Labour Laws”, or CLT). It is important to note that, under the terms of the sole paragraph of that article, it is a require - ment that the employee not be underprivileged, ie, the employee must have a university degree and receive a monthly salary equal to or greater than twice the maximum limit of the benefits of the General Social Security System. To be valid, the clause must observe reasonable time and territorial limitations, with case law admitting up to two years as reasonable and territorial delimitation in locations where the employer actually operates. It is also important to clarify the specific object (ie, which activities are actually covered), and, finally, that there be financial compensation. Compensation to the employee must observe maintenance of the standard of living, ie, the proportion of remuneration. It is therefore important that the clause includes rights and duties for both parties, not just the employee. Violation of the clause should be challenged in the Labour Court. 2.2 Non-Solicits As set out in 2.1 Non-Competes , although there is no express provision in the legislation, non-solicitation clauses are considered valid based on the principle of contractual freedom (Article 444 and sole para - graph of the CLT). Therefore, in Brazil, it is permissi - ble to include non-solicitation clauses, provided that the parameters are reasonable and do not absolutely impede the free exercise of the profession, freedom of
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