Fux denies employment relationship to app drivers

Decisions like these were also handed down by STF minister Alexandre de Moraes.

Justice Luiz Fux is the second member of the Federal Supreme Court (STF) to deny employment relationships to ride-hailing drivers. Yesterday, he overturned two rulings from the Minas Gerais Labor Court regarding Cabify, which ceased its operations in Brazil. He determined that the Court's case law be respected. Similar decisions have already been issued by Justice Alexandre de Moraes. They have been issued in complaints filed by app-based companies against Labor Court rulings that recognize employment relationships, granting drivers the right to benefits such as the FGTS (Unemployment Severance Fund), the 13th-month salary, and a third of vacation pay. In the cases analyzed by Fux (Rcl 61267 and Rcl 59404), he found that the decisions failed to comply with a binding Supreme Court theory. In it, the Court declared the constitutionality of outsourcing “and, therefore, the non-establishment of an employment relationship between the contracting party and the employee of the contracted party” (ADPF 324 and RE 958252).

Fux also emphasizes in his decision that the Supreme Court's Plenary Session "has already ruled in numerous precedents recognizing types of employment relationships other than those established in the Consolidation of Labor Laws (CLT)." He cites as an example a decision in which the Plenary Session found the outsourcing of autonomous road freight transportation legitimate, disregarding the relationship between the parties (ADC 48). The decisions analyzed by the minister had been issued by the Regional Labor Court of Minas Gerais (TRT-MG). In their complaints, the companies also argue based on binding Supreme Court precedents, including one that addressed the constitutionality of outsourcing.

According to Ana Carolina Leite, an attorney advising Cabify in the cases, of Chiode Minicucci Advogados, Fux's decisions, as well as those of Moraes (Recl 59,795 and Recl 60,347), impose a limit on these rulings issued by the Labor Court. She also states that new complaints have been distributed to other justices but have not yet been analyzed. For José Eymard Loguercio, an attorney advising app drivers, of LBS Advogados, this issue should not be judged on a case-by-case basis. He also emphasizes that the Supreme Federal Court (STF) did not analyze the matter in its general context, which would be binding. He adds that these cases do not address outsourcing, nor the specific situation of independent drivers—who have their own legislation. Finally, Loguercio highlights that then-Attorney General Augusto Aras even requested that the Supreme Federal Court (STF) standardize case law on complaints when the Labor Court identifies fraud in the establishment of an employment relationship (Rcl 60620). According to Aras, the use of complaints in these cases is inadmissible because the theses established in the outsourcing ruling do not address the same situation. He also notes that between 2019 and June 2023, more than 780,000 cases involving requests for recognition of employment relationships reached specialized courts, demonstrating the social impact of the issue. In addition to the complaints, Uber is already filing an appeal to be considered by the Supreme Court. It has been assigned to Justice Edson Fachin, but a trial date has not yet been set (RE 1446336). The apps have prevailed in these cases. A survey conducted through the Data Lawyer jurimetrics platform shows that there are 15,221 (completed) lawsuits against Uber, 99, and Cabify, and 5,555 favorable decisions for the apps (there may be more than one per case). For workers, there are 2,388 victories. At the Superior Labor Court (TST), the 2nd, 3rd, 6th, and 8th Panels decide to recognize the employment relationship, while the 1st, 4th, and 5th Panels deny the requests. In Subsection I Specialized in Individual Disputes, which consolidates the TST's understanding, two lawsuits against Uber are under analysis (E-RR-1000123-89.2017.5.02.0038 and E-RR-100353-02.2017.5.01.0066).

Text originally published on September 29, 2023 on the Valor Ecônomico website.