BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

19 The Protection of Personal and Sensitive Data of the Employee in the Brazilian Legal System

Rodrigo Goldschmidt 1 Beatriz de Felippe Reis 2

1. Initial Considerations We live in a society in which the treatment and the combination of personal data is becoming increasingly frequent. This practice allows you to reveal information about specific individuals, which may signify violation of the fundamental rights of its owners. In labor relations, in which there is a greater degree of subordination and vulnerability of the employee, the need to protect personal and sensitive data becomes even more urgent, because, to enter these data, the employer obtains information that does not show only professional skills, but also issues related to privacy and private life of the worker. In the Brazilian legal system, although there is no law expressly ensuring the protection of personal and sensitive data of workers, it is intended, by using the theory of horizontal effects of fundamental rights, establish a limit on the employer to process these data, so as to guarantee respect for the fundamental rights of workers. For both, in a first moment will be made a brief discussion about the impact of new technologies in obtaining data from the employee. Next, some definitions will be presented in respect of personal data and sensitive data. In the following part, it will be checked how the Brazilian legal system and some international instruments take care of the theme, with focusing on the employment relationship. In the end, the chapter will present a brief study of the protection of personal and sensitive data of the employee under the constitutional perspective of horizontal effects of fundamental rights. Finally, using the method of legal interpretation based on the collection and analysis of the bibliography and legislation in this field, the present research aims to advance the discussion on the creation of protective standards of personal and sensitive data, particularly in relation of employment, in which the level of inequality is patent in virtue of legal subordination of the worker, presenting a solution while reigns the normative vacuum in the Brazilian legal scenario.

1 Post-Doctor in Law by PUC/RS. Doctor of Law from UFSC. Teacher and Researcher of PPGD – Master in Law – UNESC. Labor Judge of TRT12. 2 Master student in law of PPGD/UNESC. Specialist in Labor Law by UNISINOS. Graduated in Juridical and Social Sciences by UFRGS. Judiciary Analyst of TRT4.

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