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Associates Blog

Is It Permissible to Request Criminal Background Checks During the Job Recruitment Process?

25 de dez de 2024

2 min read

By Lívia Silva, Legal Assistant in the Labor Law Area.

Supervised by Partner Monique Carvalho.


At first glance, it is permitted to request a Criminal Background Certificate from the Federal Police during the hiring process for positions that involve handling confidential information, for example. However, is such a request generally allowed during the recruitment process?


The Criminal Background Certificate provides information on an individual’s criminal records linked to their name and data on the Federal Police website, and it is issued free of charge. The document is valid for 90 days from the date of issuance.


Employers must adhere to legal boundaries when applying selection strategies to avoid discrimination in the recruitment of candidates.


The Fourth Panel of the Superior Labor Court (TST), Subsection 1 Specialized in Individual Disputes (SDI-1), concluded that the job recruitment process must comply with moral and legal standards. The court ruled that requesting a Criminal Background Certificate causes moral damage to the candidate if the following conditions are not met:


1. Illegitimate Requests:

Requiring a Criminal Background Certificate is illegitimate and constitutes moral damage when it represents discriminatory treatment or lacks justification based on legal provisions, the nature of the position, or a special level of trust required.


2. Legitimate Requests:

Requiring a Criminal Background Certificate is legitimate and does not constitute moral damage when supported by explicit legal provisions or justified by the nature of the position or the level of trust required. Examples include domestic workers, caregivers for minors, the elderly, or people with disabilities (in daycare centers, nursing homes, or similar institutions), road freight drivers, workers in agribusiness handling sharp tools, bank employees, workers dealing with toxic substances, narcotics, and weapons, or those handling confidential information.


3. Absence of Justification:

Requiring a Criminal Background Certificate without any of the justifications listed above constitutes in re ipsa moral damage, which is subject to compensation regardless of whether the candidate is hired.


Thus, companies must comply with the terms established by the Fourth Panel of the Superior Labor Court. Employers should ensure that the request for a Criminal Background Certificate is directly linked to the job position and authorized by law, or justified by the high level of trust required for the position.


Furthermore, in cases where a criminal record exists, employers cannot prevent the individual from re-entering the job market. Denying employment based on unrelated criminal records is discriminatory if the conviction is not linked to the proposed role.


In conclusion, requesting a Criminal Background Certificate during the recruitment process, regardless of whether the candidate is selected for the position, is unlawful and discriminatory. This constitutes in re ipsa moral damage and is therefore subject to compensation.