If you've come here to find out if background checks are allowed for hiring, as a rule, no. The requirement for criminal records is only lawful when the nature of the position justifies precaution (risk or confidence function), according to the TST. Practice must observe the CF/88, Law 9.029 / 95 (prohibits discriminatory criteria) and the LGPD (legal basis and specific purpose). Outside of these hypotheses, the requirement may generate moral damage and sanctions.
Although it is associated with protecting the company, this practice is surrounded by important legal and ethical issues. In order for it not to become discriminatory conduct, the verification must respect the rights of candidates and comply with current legislation.
In this article, we will discuss the circumstances under which it is or is not permissible to require the verification background checks for hiring, what are the legal limits of this practice and in what contexts it can be applied, taking into account Brazilian legislation, relevant court decisions and personal data protection guidelines.
We will also discuss how technological tools have been used to make this process safer, more efficient and in compliance with the law. Enjoy your reading!
Legal basis for background checks
Brazilian law imposes limits on background checks, even when performed with the aim of protecting the organization. The 1988 Federal Constitution, in its article 5, ensures the inviolability of privacy, private life and honor. This protection serves as a basis for judicial decisions that restrict discriminatory practices in employment relationships.
A Law No. 9.029 / 1995 is a milestone in this context. It prohibits the adoption of criteria that may discriminate against candidates, such as ethnic origin, religion, marital status and family situation. This rule also serves as a basis for preventing abusive demands, including requests for criminal records without justification compatible with the activities of the position.
Another important point is the General Law on Data Protection (LGPD), which governs the collection and processing of personal information. According to the LGPD, any sensitive data, such as criminal history, can only be collected with a clear legal basis and specific purpose – in other words, it means that the company needs to justify the need for this information, avoiding excesses or violations of privacy.
The Superior Labor Court (TST) has also consolidated its understanding on the subject. In Theme #0001, it was determined that the generic requirement of criminal records, unrelated to the position to be occupied, may generate compensation for moral damages. This position reinforces the need for caution on the part of employers.
Positions where the requirement is permitted
Despite legal restrictions, there are specific situations in which the requirement for background checks (also known as background check(or BGC) is accepted and supported by legislation – especially when the nature of the position involves high levels of responsibility, access to sensitive information, or direct contact with vulnerable groups.
Under these conditions, checking is understood as a preventive measure to ensure the safety of third parties and confidence in the performance of the function. See under which circumstances the practice is permitted:
Vigilantes
As per the terms set out in the Law No. 7.102 / 1983, professionals in the private security sector must present a certificate of no criminal record as a requirement to carry out the activity. The requirement aims to protect the work environment and third parties in places with a high flow of people or valuable goods.
Caregivers and professionals who work with children, the elderly or people with disabilities
For those who perform functions that involve direct and constant care for individuals in vulnerable situations, the candidate's behavioral history can be considered a safety factor, as a more careful selection contributes to the physical and emotional protection of those assisted.
drivers
Whether in corporate transportation or app-based services, it is quite common for companies to analyze previous records related to traffic behavior, such as infractions or records of violence. In such cases, such care is permitted, given the objective of ensuring the protection of passengers and cargo, in addition to the reputation of the service provided.
Banking and financial sector employees
Given the possibility of manipulating sensitive values and data, institutions in this sector need to carry out more rigorous checks. Historical analysis helps prevent fraud, reduce operational risks and preserve trust in relationships with customers and partners.
In all these cases, the collection of personal information is permitted as long as there is a direct link with the requirements and responsibilities of the position. Outside of these cases, the imposition of background information without objective grounds may be considered an abusive practice, resulting in legal measures for violation of rights and discriminatory conduct.
The legal risk of undue demand
Companies that adopt background checks without clear criteria are subject to sanctions – as was the case Nestle case, convicted of collective moral damages after consulting candidates' credit information with SPC and Serasa during selection processes. The practice was considered discriminatory by the TST, which understood that financial data is not justifiable for most positions.
This decision reflects the case law that has been formed around the subject. Requiring information not directly related to work may violate the principles of legality, reasonableness and proportionality. The result may be that the company is condemned, both in terms of paying compensation and in terms of its reputation in the market.
Another point that deserves attention is the refusal to hire based on a criminal record that is not related to the position. The TST has already ruled that the mere fact that a candidate has a criminal record cannot be a reason for exclusion, except in very specific situations – which reinforces the idea that each case must be analyzed individually, considering the fundamental rights of the worker.
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The prohibition of queries to SPC/Serasa without justification
Consulting credit protection services during the selection process is a practice that has been frequently criticized by experts in labor law and data protection. Brazilian law does not authorize this type of verification in an unrestricted or generalized manner, requiring caution on the part of employers.
With the exception of very specific situations – such as in positions where the candidate's financial history is directly linked to the functions he/she will perform – this conduct is considered inappropriate and discriminatory.
Examples of roles where an economic profile analysis may be warranted include positions such as treasurers, financial managers, credit analysts, or any other role that involves direct handling of funds, risk assessment, or credit decisions. In these cases, examining the candidate's personal financial situation may be related to the trust required for the position.
The prevailing understanding in the Judiciary is firm: a candidate's economic condition, in itself, cannot be used as an elimination criterion. Any company that adopts this conduct without a compatible justification must be held liable and respond in court for moral damages, labor lawsuits and possible investigations into abusive practices and violation of fundamental rights.
Automation as a safe and efficient solution
In recent years, the technological advancements have transformed the way background checks are performed. Automated solutions offer greater accuracy, agility and compliance with legislation. These tools allow the company to collect and process the necessary data more securely and in compliance with the LGPD.
Through the use of artificial intelligence, it is possible cross information in a standardized and unbiased manner. The result is a selection process that is somewhat more objective and less susceptible to personal interpretations that could eventually lead to discrimination.
ZapSign offers a complete solution for companies looking to integrate eSignature with background checks and identity. Technology allows verification to take place before, during or after signing contracts, providing greater security for the employer and guaranteeing the rights of candidates.
Web and API integration allows the system to be adapted to the hiring flow of different sectors, such as HR, credit, insurance, marketplaces and real estate. Automated verification avoids excessive data collection, reduces legal risks and improves compliance with current regulations. This is a modern and secure alternative.
Background checks for hiring must be conducted carefully and responsibly. Although they may be useful for protecting the company's interests, this measure must respect the fundamental rights of the employee and observe legal limits. The requirement is only justified when it is directly linked to the job's functions and is carried out in a transparent and proportionate manner.
With this reality in mind, it is important to note that the use of tools digital and automated processes, such as offered by ZapSign, represents an efficient way to meet legal requirements, protect the company from legal liabilities and raise the level of compliance in contracting processes.
Technology allows background checks to be carried out in a structured manner, without compromising the privacy or violating the rights of candidates, in addition to filtering only the information that is truly necessary, avoiding excessive data collection and reducing the risk of discriminatory behavior, in addition to providing greater agility and standardization to the selection process.
If you are looking to implement a solution that combines background checks, identity and electronic signatures with international coverage and easy integration, be sure to check out click here to learn about the ZapSign platform!
CEO of Henshin Agency and digital marketing consultant, fascinated by content marketing and an admirer of Japanese culture.
