The Brazilian Supreme Federal Court (STF) has increasingly allowed companies to bypass the traditional legal route and go directly to the court to overturn decisions made by the labor justice system. Through specific cases, the court has reduced the role of specialized labor courts while also loosening labor regulations.

A key turning point was the 2018 ruling that permitted outsourcing of a company’s core activities. Since then, the trend has intensified around issues such as “pejotização” — when companies hire workers as independent contractors (legal entities) to avoid labor obligations — and the employment relationships involving digital platforms for transport and delivery services.

The STF’s flexibility has been occurring through a type of legal action called “reclamações” (claims), which is meant to uphold the Court’s precedents when lower courts or judges disregard them. This mechanism allows access to the Supreme Court without going through each judicial stage.

Much of the new labor jurisprudence is being developed this way. The STF has shown greater leniency in accepting these types of claims in labor matters: while only 28% of general claims are upheld, the success rate for labor-related ones is 38%, according to STF data since 2000.

Many rulings have allowed “pejotização” based on the 2018 decision on outsourcing, even though the two are legally distinct.

The STF is now expected to issue a definitive ruling on “pejotização” after Justice Gilmar Mendes suspended all related proceedings nationwide. Mendes has frequently criticized the labor courts and advocated for greater labor deregulation.

Even during the suspension, some decisions are still being made. On April 29, for instance, Justice Cristiano Zanin overturned the recognition of an employment relationship involving a lawyer who worked for a company in 2021, before she was formally hired.

Zanin argued that the labor courts had disrespected the STF’s stance on the legitimacy of alternative contractual models. He also stated that hiring someone as an independent contractor is valid, especially when there’s no sign of vulnerability.

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As Folha previously reported, Gilmar Mendes has taken an active role in this area. He has been coordinating with lawmakers and the financial sector to propose a bill that would reinstate the requirement for union approval of employment contract terminations. The goal is to encourage pre-litigation settlements and reduce the volume of cases reaching the courts.

These developments at the STF are taking place amid a surge in labor lawsuits. In 2023, there were 4.19 million new cases in the labor courts — a 28.7% increase from the previous year, according to the National Council of Justice (CNJ).

In 2024, the STF received more “reclamações” than ever before, surpassing 10,000 for the first time. Of that total, 6,160 are labor-related.

The STF requires three criteria for accepting a “reclamação.” First, there must be a clear connection between the contested decision and the violated precedent. Second, the action cannot serve as an appeal of the earlier decision. Third, it must not result in a procedural shortcut that skips lower courts. Finally, it should not involve a reassessment of facts and evidence. In other words, these claims must demonstrate non-compliance with a specific STF decision.

This legal tool has been widely used by digital platforms. One claim, for example, was filed by Cabify, a ride-hailing app, against a decision by the Regional Labor Court of the 3rd Region. Gilmar Mendes overturned the lower court’s ruling, siding with Cabify against the recognition of an employment relationship.

Various occupations have been involved in similar claims. Justice André Mendonça reversed a second-instance ruling that recognized an employment relationship with a pizza delivery worker in Rio de Janeiro, despite the business having other employees with formal contracts.

Other cases involve street sweepers, delivery drivers, beauty salon workers, cargo transporters, and real estate agents. In some rulings, the STF sends the case back for reanalysis, but in others, the Court directly overturns lower rulings that had recognized employment ties.

Mirella Franco, from the law firm Granito Boneli Advogados, attributes the increase in STF rulings of this type to the labor courts themselves. She argues that labor judges tend to see subordinate relationships wherever there is workplace structure.

“One reason for this bypassing of legal stages, even specialized courts, is that labor justice is too paternalistic today. That’s no surprise to business owners. When judges handle cases involving employment relationships, they generally focus on the labor code (CLT) and place too much emphasis on subordination,” she said.

Guilherme Feliciano, professor and former president of Anamatra (National Association of Labor Magistrates), sees the STF as playing a central role in this trend.

“The Supreme Court is gradually becoming a forum for labor disputes. Not because the labor courts are being rebellious, but because the Court has been too lenient in admitting these claims,” he said.

He noted that this shift has even influenced the legal profession, with lawyers realizing they can achieve quicker and cheaper outcomes through this route. “Unintentionally, the Supreme Court has created a new niche for labor lawyers, particularly those representing employers,” he added.

Feliciano also challenged the view that labor courts or the TST (Superior Labor Court) are biased.

“The TST is now divided into three blocs: one group of justices who emphasize protection for the weaker party in contracts, another that aligns more with economic freedom, and a swing group that often determines the outcome,” he explained.

Cássio Casagrande, constitutional law professor and labor prosecutor, said the court is currently sending a pro-deregulation message. “The Supreme Court is mistaken in equating outsourcing with ‘pejotização’, which are completely different. There’s a flood of cases because corporate lawyers realized that the court has opened the gates not just for outsourcing — which was authorized by lawmakers — but also for ‘pejotização’,” he said.

Regarding the criticism of the labor courts, he also dismissed it. “It’s not that they’re disobeying the STF. They’re distinguishing between outsourcing, which has been ruled on, and ‘pejotização’,” Casagrande said.