Employee Background Checks in Brazil: Navigating legal challenges
Hiring the right talent is crucial for business success. However, in Brazil, employers must navigate strict labor laws and data protection regulations when conducting background checks. The General Data Protection Law (LGPD) and Consolidation of Labor Laws (CLT) govern how employers handle candidate data, ensuring fair hiring practices and preventing discrimination.
This guide provides a comprehensive overview of what employers need to know about background checks in Brazil. From legal compliance to common pitfalls, we outline the best practices to help businesses conduct screenings effectively while staying within the law.
Key takeaway
✔️ Background checks are highly regulated under LGPD and CLT, requiring explicit written consent from candidates.
✔️ Not all checks are allowed—criminal records and credit checks are restricted to specific job roles.
Key Regulations Governing Background Checks in Brazil
Employers in Brazil must adhere to strict legal and data protection laws when conducting background checks. Compliance with the General Data Protection Law (LGPD) and Consolidation of Labor Laws (CLT) is essential to avoid potential legal repercussions.
Key legal frameworks:
- CLT (Consolidação das Leis do Trabalho) – Prohibits discrimination and ensures fair hiring practices.
- LGPD (Lei Geral de Proteção de Dados) – Regulates the collection, processing, and storage of personal data.
- Brazilian Constitution – Safeguards privacy and personal rights in the workplace.
Failure to comply with these laws can result in financial penalties, lawsuits, and reputational damage.
Legal Framework: Are Background Checks Permitted?
Yes, background checks are legally permitted in Brazil, but employers must follow strict guidelines. They must:
- Obtain explicit written consent from candidates before initiating screenings.
- Restrict checks to job-relevant information to avoid discriminatory hiring practices.
- Ensure full compliance with the LGPD to protect candidates’ privacy.
Employers must clearly communicate what data will be collected, how it will be used, and who will have access to it.
Restricted and Prohibited Background Checks
Some background checks are heavily restricted or outright prohibited in Brazil to prevent discrimination and protect candidates’ rights.
Criminal record checks: Permitted only for specific roles where security is legally mandated (e.g., banking, law enforcement, financial services, childcare).
Credit history checks: Prohibited unless the job involves financial responsibilities.
Medical history checks: Employers cannot request medical records unless mandated for health and safety.
Political or religious background checks: These are strictly forbidden under anti-discrimination laws.
Employers violating these regulations may face legal action and severe fines.
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Documents That Cannot Be Requested
According to Law No. 9.029/1995, it is illegal for employers to request discriminatory or unnecessary documents during the hiring process. Employers must avoid any practice that limits access to employment based on criteria unrelated to job performance.
- Article 1: « The adoption of any discriminatory or restrictive practice for accessing or maintaining employment based on sex, origin, race, color, marital status, family situation, disability, professional rehabilitation, age, among others, is prohibited. »
- Article 2: « Violators of this law are subject to fines and compensation for moral and material damages. »
Prohibited Documents:
Proof of previous work experience exceeding six months in a similar role.
A certificate confirming the absence of labor lawsuits (certidão negativa trabalhista).
Negative credit reports from SERASA, SPC, or similar financial protection agencies.
Criminal background certificates (certidão negativa criminal), unless legally required.
Medical reports related to pregnancy status or sterilization procedures.
HIV/AIDS tests.
Although employers may request criminal records for roles where security is a legal requirement (e.g., armed security personnel or cash transport services), they cannot refuse a candidate solely based on a past conviction if the conviction is unrelated to job performance.
Rejecting candidates based only on the presence of a criminal record can be classified as employment discrimination under Brazilian law.
Article 7, Item II: « The processing of personal data can only occur for compliance with a legal or regulatory obligation by the controller.«
Article 11, Item II: « The processing of sensitive data, including criminal records, is only permitted for compliance with legal obligations, policies, or security-related needs.«
Compliance with LGPD and Data Protection Regulations
When performing employee background checks in Brazil, it’s crucial to comply with the General Data Protection Law (LGPD) and adhere to guidelines set by the National Data Protection Authority (ANPD).
- LGPD (Lei Geral de Proteção de Dados): This is Brazil’s cornerstone data protection law, emphasizing consent, data security, and transparency in processing personal data.
- ANPD (Autoridade Nacional de Proteção de Dados): This agency enforces LGPD compliance, provides guidance, and ensures organizations protect individual data rights.
- Legitimate Interest & Compliance: Employers must establish a legitimate interest for conducting background checks. The process must be necessary for ensuring the legality and security of employment relationships, and companies must conduct a balancing test to ensure their interests do not override candidates’ fundamental rights and freedoms.
Failure to comply with LGPD guidelines may result in penalties, data processing restrictions, or reputational damage for employers.
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Article 7, Item II: « The processing of personal data can only occur for compliance with a legal or regulatory obligation by the controller.«
Article 11, Item II: « The processing of sensitive data, including criminal records, is only permitted for compliance with legal obligations, policies, or security-related needs.«
Industries Where Background Checks Are Common
Certain industries in Brazil routinely conduct background checks to ensure security, compliance, and workplace integrity:
- Banking & Finance – Prevents fraud and financial misconduct.
- Healthcare & Education – Ensures professionals meet industry safety standards.
- Energy & Infrastructure – Maintains high-risk job compliance.
- Technology & Cybersecurity – Screens employees handling sensitive data.
- Logistics & Transportation – Ensures driver safety and regulatory adherence.
Types of Background Checks Allowed in Brazil
Employers in Brazil can conduct limited background checks, ensuring they remain within legal boundaries. The following table outlines the permitted and restricted background checks:
| Type of Background Check | Allowed? | Purpose |
|---|---|---|
| Employment Verification | ⚠️ Limited | Confirms previous job history and experience. |
| Education Verification | ⚠️ Limited | Ensures academic qualifications match what was declared. |
| Reference Checks | ⚠️ Limited | Provides insights from past employers or colleagues. |
| Criminal Record Checks (Restricted) | ⚠️ Limited | Only permitted for certain roles like security and financial services. |
| Credit History Checks (Restricted) | ⚠️ Limited | Allowed only for positions with financial oversight responsibilities. |
Employers must ensure they only conduct job-relevant screenings and always obtain written candidate consent before proceeding.
Common Pitfalls in Conducting Background Checks
Employers often make mistakes when conducting background checks, leading to compliance violations and legal risks. Some of the most common pitfalls include:
- Failing to Obtain Written Consent – Employers must receive explicit approval before accessing candidate data.
- Overreaching Scope – Background checks must relate to job requirements; excessive inquiries violate privacy laws.
- Ignoring LGPD Compliance – Mishandling candidate data can result in heavy penalties.
- Discriminatory Practices – Employers must avoid using background information to unlawfully exclude candidates.
- Lack of Transparency – Candidates must be informed of how their data is used and given a chance to correct inaccuracies.
To avoid these pitfalls, employers should always work with compliance specialists and maintain clear documentation.
Conclusion
Employee background checks in Brazil are not a common practice and are subject to strict legal limitations under Brazilian labor and data protection laws. Employers must comply with LGPD, CLT, and anti-discrimination regulations when considering any form of background verification. The legal risks associated with unauthorized screenings are significant, and improper background checks can result in fines, lawsuits, and reputational damage.
Given the complexity and potential legal implications, Europortage does not recommend conducting background checks in Brazil unless required by law for specific job functions. Instead, employers should focus on alternative verification methods that comply with labor laws and respect candidates’ privacy rights.
