Are Background Checks Legal in Brazil?

Background checks are a critical step for employers worldwide and legal in Brazil, however conducting such checks is governed by strict legal frameworks. Employers, contractors, suppliers, landlords, and foreign companies hiring Brazilian nationals are allowed to carry out background checks, but these must comply with restrictive laws designed to protect individuals from discrimination and ensure the ethical handling of personal data.

This article provides an overview of the legal landscape surrounding background checks in Brazil and highlights key considerations, including specific conditions under which penalties may apply.

Legal Framework for Background Checks in Brazil

Two primary laws regulate background checks in Brazil:

1. General Data Protection Law (LGPD) – Law 13.709/2018
   Implemented in 2020, the LGPD governs the processing of personal data in Brazil. Employers, landlords, and businesses—both domestic and international—must obtain explicit consent from individuals before collecting or using their personal information for background checks. The LGPD also limits the scope of data that can be collected, ensuring it is relevant and necessary for the intended purpose.
2. Consolidação das Leis do Trabalho (CLT) – Law 9.029/1995
   The CLT prohibits discriminatory practices in the workplace, including during the hiring process. Employers must avoid actions that could be considered discriminatory, such as requesting criminal records unless directly related to job requirements.

Key Considerations for Employers, Contractors, Suppliers, and Landlords

1. Obtain Consent

Before initiating a background check, we suggest that all parties:

• Clearly inform the individual about the purpose and scope of the check.
• Obtain explicit written consent, in compliance with LGPD.
• Ensure the data collected is directly relevant to the position, contract, or agreement.

2. Avoid Discriminatory Practices

Employers, contractors, and landlords should avoid:

• Requesting criminal records unless the role or agreement specifically requires it (e.g., roles involving trust, childcare, or high-value leases).
• Collecting data that could lead to discrimination based on race, gender, religion, or other protected characteristics.

3. Data Handling and Security in Brazilian Law (LGPD)

All collected data must:

• Be securely stored and accessible only to authorized personnel.
• Be deleted or anonymized once its purpose is fulfilled.
• Comply with LGPD to avoid penalties.

Criminal Record Checks in Brazil

Criminal record checks are particularly sensitive in Brazil. Under the CLT, employers and others conducting checks must ensure they are justified and non-discriminatory.

If a criminal record check is performed:

• Relevance: It must be directly related to the job, contract, or agreement.
• Consent: Explicit consent from the individual is mandatory.
• Compliance: Checks must adhere to LGPD and CLT provisions.

Consequences of Non-Compliance for Foreign

Penalties or fines will only apply to employers, contractors, suppliers, landlords, and foreign companies who violate LGPD or CLT regulations if specific conditions outlined in Article 7, § 2º and § 3º of the Brazilian Penal Code (CP) are met. These conditions include:

1. Entry into Brazilian Territory: The individual must have entered Brazilian territory.
2. Dual Punishability: The act must also be punishable in the country where it was committed.
3. Extradition Eligibility: The crime must be included among those for which Brazilian law authorizes extradition, such as drug trafficking, terrorism, organized crime, corruption, money laundering, and other offenses specified in international treaties ratified by Brazil.
4. No Prior Acquittal or Completed Sentence Abroad: The individual must not have been acquitted or completed their sentence for the crime in the foreign jurisdiction.
5. No Extinction of Punishability: The individual must not have been pardoned or otherwise had the punishability extinguished under the foreign jurisdiction’s laws, as determined by the more favorable law.

If these conditions are not met, foreign individuals or companies may not be subject to penalties under Brazilian law, even in cases of non-compliance.

When these conditions are fulfilled, violators may face consequences, such as:

• Legal Penalties: Fines or other actions for discriminatory practices or mishandling personal data.
• Reputational Damage: Non-compliance can harm an organization’s reputation, affecting its ability to attract talent or partners.

Conclusion

Background checks are legal in Brazil but must comply with LGPD and CLT regulations. Employers, contractors, suppliers, landlords, and foreign companies hiring Brazilian nationals must prioritize transparency, obtain explicit consent, and ensure all data collection is relevant to its purpose. By adhering to these requirements, businesses and individuals can protect themselves from legal risks while maintaining ethical practices.

If you’re considering conducting background checks in Brazil, our team of experts can guide you through the process to ensure compliance with all applicable laws.