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Date: April 22, 2019
Posted by: CPDMA Team

Slave labor and the consequences of the application of Criminal Law in the Labor Court

The practice of slave labor is one of the subjects most in evidence in the media and in the courts, incredible as it may seem, even in the 21st century. According to the International Labor Organization (ILO), 20 million people worldwide are victims of contemporary slavery.

Traditionally, this type of labor is employed in economic activities developed in the areas of charcoal production and in rural areas – in livestock and in the cultivation of sugarcane, soybeans and cotton. In recent years, this situation has also been verified in urban centers, especially in the textile industry and civil construction. Unfortunately, there are records of slave labor in all Brazilian states.

In the Brazilian legal system, the Penal Code, in its article 149, establishes a penalty of ''imprisonment, from two to eight years, and a fine, in addition to the penalty corresponding to violence'', for anyone who ''reduces someone to a condition analogous to slave, either by subjecting him to forced labor or an exhausting day, or by subjecting him to degrading working conditions, or by restricting, by any means, his locomotion due to a debt contracted with the employer or agent''. 

Contrary to what is imagined for slavery, to configure the crime of article 149 of the Penal Code, it is not necessary to prove the physical coercion of freedom to come and go or even the restriction of freedom of movement. It suffices to submit the victim ''to forced labor or an exhausting day'' or ''to degrading working conditions''.

Contemporary slave labor consists of the super-exploitation of workers by those who, by taking their services, aiming at maximum profit, deny them the fundamental rights guaranteed in the Constitution of the Republic, especially their dignity. 

It is important to emphasize here that slave labor cannot be characterized by mere labor infractions, but when a crime against the dignity of the worker is proven. Every human being is born with the same fundamental rights. These, when violated, pull us out of this condition and turn us into things, disposable instruments of work. When a worker maintains his freedom, but is excluded from minimum conditions of dignity, then we have characterized slave labor. 

However, the consequences of submitting the employee to work analogous to slavery are not only criminal, since the conduct also has repercussions in the Labor Courts. That is, companies that use this type of labor are subject to the payment of very high indemnities as collective moral damage. 

The Ministry of Labor and Employment (MTE) published on 10/16/2017 Ordinance MT 1,129, in which it provides for the concepts of forced labor, exhausting working hours and conditions similar to slavery to be observed by auditors at the time of inspections.

As already mentioned, it is not any failure to comply with labor standards that generates the incidence of the type provided for in article 149 of the Penal Code. Only conduct that entails the ''reduction to a condition analogous to that of a slave'' is incriminated, which presupposes total disregard for the dignity of the human person in the work relationship. In those cases in which this is provided without minimum hygiene, health and safety conditions or, even, in an extremely exhausting journey.

A degrading working condition is, therefore, one that transcends the regular exercise of work, it is what humiliates the worker beyond the conditions peculiar to the activity itself. 

On the other hand, the exhaustive working day does not consist of those simple overtime hours, even if usual and correctly paid, but rather the one that makes it impossible for the employee to relate and live in society through recreational, affective, spiritual, cultural, sports, social and of rest, which will bring you physical and psychological well-being and, consequently, happiness. Or it prevents you from executing, continuing or even starting over your life projects, which will, in turn, be responsible for your professional, social and personal growth or fulfillment.

In order to recognize the crime of reduction to a condition analogous to slavery, and consequently conviction in the labor court, proof must be required that the violation of labor rights has been intense and persistent.

The world of work is in constant transition. Thus, the magistrate must, weighing the constitutional principles and fundamental rights, adapt or not the employer's conduct to the criminal type described in article 149 of the Penal Code.

I emphasize that the Labor Court should not deal with offenses that do not affect, with such seriousness, the protected legal object – the dignity of the worker. In other words, criminal law should only be invoked as a last resort. In other words, only the subjection of the worker to absolutely unworthy conditions, with the violation of human dignity itself, should constitute work in conditions analogous to slavery.

Source: Alice Romero, attorney at Cesar Peres Dulac Müller, specializes in Process and Labor Law.

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