Brazilian Regional Labor Courts, in recent decisions, have dismissed claims from workers whose intent was to have employment relationship recognized with the declaration of nullity of the Legal Independent Contractor contract, and the payment of employment contract termination and severance pay.
These decisions have consolidated jurisprudence defined by the Brazilian Supreme Court in the sense of the legality of technical services outsourcing, provided by qualified professionals, relating to activities of either means or purposes of companies in general.
An essential basis in decisions is that magistrates have recognized the hypersufficiency of workers in the establishment of legal entities as contractors for the provision of technical and professional services.
Thus, Labor Courts, when analyzing these labor claims, evaluate the degree of qualification of the workers (those who have a high degree of knowledge and high remuneration), because they are in a position of material and legal equality in relation to the contracting company. Another relevant argument, taken into account in the decisions, concerns the consideration of the parties’ real intention when formalizing the legal business.
Those with a complete higher education, who have a high monthly and annual financial income, cannot be considered hyposufficient. Such contractors are to be aware of the contracting terms established and generally formalize their contracts through companies they set up to receive higher amounts, which makes the agreement more attractive both to the contracting party and contractor. This kind of contracting has proven very attractive in the area of Information Technology.
Hyposufficiency is the term that applies in labor justice to vulnerable employees within an employment relationship; those are the ones with little or no education and who need to be protected from possible abuses that may be committed by the employer.
Furthermore, the recognition of the employment relationship entails the following requirements, which are indispensable: subordination; personhood; burdensomeness and habitualness. In case any of those requirements are unaccounted for, the recognition of employment relation is affected.
