Due diligence: how to identify labor risks?

Isabela Cristina Grilo
Lawyer at Marcos Martins Advogados

Currently, there is a lot of talk about compliance, the expression of which means, in short, acting in accordance with legal or internal company requirements.

In this regard, the notion and practices of compliance or labor compliance, which dictate the mechanisms for preventing and solving problems in relation to the company’s relations with public authorities, customers, suppliers and employees, have gained increasing space in the business world, with the increase in the search for ways to establish commitments with the law and ethics, so that actions make corporate life whole.

Among the compliance guidelines there is the notion of due diligence, which can be seen as a prior assessment for hiring partners, service providers and employees, in addition to subsequent assessments, in order to identify the history and situation of the company with which you intend to do business, thus seeking to protect yourself from avoidable labor demands and liabilities.

Due diligence is extremely important as a mechanism for risk factor control, since, even if the company has a good compliance policy and is committed to the law, this, inevitably, You will find yourself on the verge of doing business with individuals or legal entities that may not be in compliance with the rules, potentially committing illegal acts with drastic financial consequences, in addition to tarnishing the name of the company that is in compliance and has a good following in the market.

In order to exemplify the concept of due diligence, we can think about contracting outsourced services, which at first (pre-contractual phase), would entail diligence with analysis of documents and information to verify the structure, financial situation and solidity of the service provider, with identification of liabilities that impact the value of the transaction, tax, labor and social security risks.

However, knowing that due diligence is not a single application process, it must continue after contracting the provision of outsourced services (post-contractual), as in the example mentioned, in order to ensure compliance with the labor obligations and eliminate the risk that the assets of the compliant company or its partners may be subject to restrictions to pay the contractor’s labor debt.

Unfortunately, it seems that some companies focus only on initial due diligence, failing to promote studies on the day-to-day lives of their employees and/or partner companies, which facilitates the occurrence of harmful acts, in situations of non-compliance. compliance.

In this context, an emblematic example concerns the act of violence carried out by outsourced security guards from a large supermarket chain, which caused the death of a consumer after being brutally beaten.

The same supermarket chain was also the target of news, when attacks by an outsourced security guard caused the death of a dog that insisted on moving within the establishment’s premises.

This incident generated outrage and left marks on the company’s image, in addition to leading to the intervention of the Public Prosecutor’s Office, when the company was forced to sign a term of commitment with the ministerial body, for the donation of R$ 1 million for a special fund intended for the purchase of medicine and animal feed for protection associations and NGOs, as well as for the sterilization of dogs and cats.

The absence of compliance precepts, through effective due diligence, ended up causing a huge stain on the company’s image, as it was not ensured that the employees involved in any situation of non-compliance were prepared to act on behalf of the company. company.

And that’s not all. In addition to the moral and civil risk, where there may be a duty to compensate, the labor risk in these cases is considerably increased.

Due diligence should be seen as a continuous work, whose overview of the company and what adjustments will be necessary to define strategies and goals, in addition to security with the mitigation of liabilities and/or inspections, saving resources and strengthening the culture must be present.

Thus, due diligence, as one of the pillars of compliance, must be applied with the aim of identifying and promoting preventive acts with the sole purpose of avoiding or reducing labor risks – an opportunity that should count with a specialized legal body, which ensures actions supported by legislation both in prevention, with guidelines, and to curb non-compliant acts.

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