Employees' inspections: the employer's Directive power and the right to intimacy

• Grant number: 15/23834-0
• Support Opportunities: Scholarships in Brazil - Scientific Initiation
• Start date: May 01, 2016
• End date: December 31, 2016
• Field of knowledge: Applied Social Sciences - Law - Private Law
• Principal Investigator: Victor Hugo de Almeida
• Grantee: Adri Nayane Souza de Mendonça
• Host Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

The new Brazilian constitutional reality ensures highlight the principle of human dignity and fundamental rights, including the rights of personality. This is essential, given the current violations of such rights often verified. The workplace is frequently host to many of these violations, especially to the intimacy and private life of the employee, by virtue of the directive power of the employer, sometimes used to justify abusive behavior. Provided implicitly by art. 2 of the Consolidation of Labor Laws, the directive power covers the employer's prerogative to determine how the work will be executed, to supervise compliance in accordance with his orders and to impose sanctions for noncompliance. However, since the legal regulation of the matter is minimum, these employer's prerogatives are subject of intense discussions, particularly with respect to their legal nature and the limits that should be respected. Some of the controversial issues covered by this debate, because they reach directly the rights of workers' personality, is the issue of monitoring of electronic mail used by the employee, of carrying out intimate searches at the beginning and / or end of the workday, and Prohibiting or the employer's interference in the emotional relationships among its employees. We seek, in the face of doctrinal and jurisprudential controversies existent in the national law, and through literature research, to trace possible defining lines of the limits that the directive power of the employer must stop at, on behalf of the guard of these fundamental rights, particularly the rights of personality of the employees.