Most decisions in the Labor Court are favorable to applications

A survey by the legal metrics platform Data Lawyer shows that there are 15,221 lawsuits against Uber, 99 and Cabify.

The recent R$1 billion ruling against Uber, which mandates driver registration under the CLT (Consolidation of Labor Laws), goes against most rulings handed down by the Labor Courts. A survey conducted through the jurimetrics platform Data Lawyer shows that there are 15,221 lawsuits (active and finalized) against Uber, 99, and Cabify (which ceased operations in Brazil), and 5,555 favorable decisions for the apps—there may be more than one per case. For workers, there are 2,388 victories.

Of the total decisions favorable to drivers and delivery workers, only 148 were fully upheld, recognizing the employment relationship and granting the remaining requests. A total of 2,240 were partially upheld, recognizing the employment relationship but not accepting all requests. The survey also reveals a large number of agreements. 3,252 were approved.

The total amount involved in the lawsuits, filed between 2015 and 2023, is R$1 billion—the same amount that Uber was ordered to pay in a court ruling for collective moral damages. Considering that the decision is still subject to appeal, as it is a lower court decision, and the outcome of the investigation, there is a chance of reversal.

The decision was handed down by Judge Maurício Pereira Simões of the 4th Labor Court of São Paulo (case no. 1001379-33.2021.5.02.0004). It was the first favorable ruling by the Labor Prosecutor's Office (MPT) in a series of lawsuits filed against apps. Until then, only decisions had denied the link. The cases involved Lalamove, 99, IFood, and Loggi.

Labor lawyers argue, however, that despite a more favorable scenario for apps, the number of decisions recognizing that app drivers and delivery people must be registered is significant.

“Não dá para dizer que existe uma tendência na Justiça do Trabalho. Até mesmo o TST [Tribunal Superior do Trabalho] está dividido”, diz Trícia Oliveira, do escritório Trench Rossi Watanabe. No TST, 2ª, 3ª, 6ª e 8ª Turmas decidem pelo reconhecimento de vínculo. Negam os pedidos, 1ª, 4ª e 5ª Turmas.

In Subsection I Specialized in Individual Disputes (SDI-1), responsible for consolidating the TST's understanding, two cases against Uber are being analyzed, but there is still no definition.

After the rapporteur, Justice Maria Cristina Peduzzi, voted to deny the binding nature of the matter, Aloysio Corrêa da Veiga suggested bringing the matter to the Plenary as repetitive, with the establishment of a binding thesis. The judgment was subsequently suspended due to a request for review (E-RR-1000123-89.2017.5.02.0038 and E-RR-100353-02.2017.5.01.0066).

The Supreme Federal Court (STF), in turn, agreed to review an appeal from Uber in July. The appeal was assigned to Justice Edson Fachin, but a trial date has not yet been set (RE 1446336).

For now, there are only decisions on complaints from Minister Alexandre de Moraes. One cancels and the other suspends decisions granting the contract to Cabify drivers (Rcl 59,795 and Rcl 60,347).

For Daniel Chiode, a lawyer who advises app companies, of Chiode Minicucci Advogados, since there is no uniformity in the Labor Courts—not even in the Superior Labor Court—the Supreme Court should take the lead and settle the matter. "What has been happening is that several judges are trying to find precedents in comparative law to grant employment contracts, while the Supreme Court has been issuing favorable decisions for apps," he says.

The conflict began in 2015 with three lawsuits. Cases began to rise in 2020, with 1,394, and in 2022 there was a spike, with 6,060 lawsuits. This year, as of September 15, 3,558 lawsuits had been filed. The state of Minas Gerais accounts for the majority, followed by São Paulo, Paraíba, Rio de Janeiro, Pará, and Amapá.

According to lawyer Trícia Oliveira, the entire discussion revolves around the control exercised by these apps. Because the platform dominates the entire technological framework—knowing the route, which driver took the ride, and how long it took—some judges, like the one in the Uber ruling, have called this control "algorithmic subordination" of the employee.

"However, we must be careful when integrating these new forms of subordination into the traditional subordination that creates an employment relationship," says Trícia. She believes there's no real subordination, as the driver can check the ride time and whether it's worth it in advance. "And they don't receive any penalties from the platform for this."

For José Eymard Loguercio, a lawyer who advises app drivers and LBS Advogados, especially in the case of passenger transportation, algorithmic subordination is even more significant. "People who sign up to work accept the conditions set by the company. There's no room for change in the fare, how much the company keeps, or how much is passed on to the driver."

Loguercio emphasizes that companies also set service standards and, therefore, are not intermediaries, but rather the business itself. He believes that under current CLT rules, they are employers. "They simply fail to comply with labor and social security obligations."

He believes that regulation, via the National Congress, is necessary. "Defining through case law could lead to an all-or-nothing decision. In other words, recognizing an employment contract or a civil contract. Which is a mistake," he says, having also served as an advisor to the Ministry of Labor and Employment's Working Group on Applications.

The conflict affects a wide range of people. Today, there are at least 1.5 million app drivers, delivery drivers, and motorcycle taxi drivers in the country, according to the Institute of Applied Economic Research (Ipea).

According to Data Lawyer's survey, the amounts involved in Uber's lawsuits are higher than those in the 99 and Cabify cases, and the same is true for the settlement amounts.

There are 8,192 lawsuits against Uber, totaling R$640.9 million. Of these, 3,743 decisions deny all claims (77% of cases with a decision on the merits). 1,001 cases are partially upheld, and only 90 cases have a ruling in favor of the employment relationship.

Uber has reached 847 settlements so far, according to the survey—about 10% of the cases. The average settlement amount is R$20,000 to R$30,000. Decisions have not yet been reached in 1,469 cases.

99 and Cabify have a combined 7,031 lawsuits, totaling R$365.28 million. 1,812 decisions were dismissed (in 32% of cases where the merits were analyzed). In only 58 decisions, all requests were granted, and in 1,239, partial approval was granted. So far, 2,405 settlements have been reached – with an average value of R$15,000 to R$25,000.

When contacted by Valor, Uber did not respond by the time this edition went to press. 99 stated that it does not comment on sub judice cases.

Text originally published on September 26, 2023 on the Valor Econômico website.