Use of breathalyzer violates data protection, decides Labor Court

A worker fired after a breathalyzer test showed drunk was able to reverse the dismissal for just cause in the Labor Court based on the safeguards of the LGPD (General Data Protection Law).

In this type of dismissal, the worker does not receive a fine of 40% of the FGTS (Service Time Guarantee Fund) and is not entitled to prior notice or unemployment insurance.

The legislation came into force in September 2020 and gave citizens the right to decide what types of personal data they provide and to be informed about how that data will be collected, stored and used.

For Judge André Luis Nacer de Souza, from the 1st Labor Court of Dourados (MS), the company that submitted the employee to the breathalyzer failed to comply with the LGPD by not explicitly communicating the purpose and need to carry out the test. The type of data collected, as it is health-related information, is considered sensitive.

Access to sensitive data, such as racial and ethnic origin, religious conviction and health and sex life information, can only occur, according to the protection law, with the consent of the holder and for specific purposes.

The worker fired for just cause in Dourados was a loading and unloading assistant at a beverage distributor. In the dismissal, the company used an excerpt from the CLT (Consolidation of Labor Laws) that mentions habitual drunkenness or on duty as one of the hypotheses of just cause.

The result of the breathalyzer test was 0.078 mg of alcohol per liter of air, a measure that, in the judge’s assessment, indicated that the consumption of alcohol had occurred the day before. Alexandre Cantero, a labor lawyer, says that the tests were carried out at random, based on a lottery.

The LGPD provides for the possibility of processing sensitive data without consent when access is essential for compliance with the controller’s legal obligation, which is the individual or legal entity that makes decisions regarding the use of this information. In an employment relationship, it is the employer.

If the worker were a driver, the understanding would be different, according to the magistrate. “As an example, carrying out a toxicological test on drivers, regardless of their consent, for the purpose of complying with article 168, § 6, of the CLT [que trata da realização desses exames]it would be a situation that would fit the device.”

The company was ordered to pay the 30-day indemnified notice and other severance pay, such as proportional vacations and the FGTS fine, plus compensation of R$5,000 for moral damages. The distributor appealed to the TRT-24 (Regional Labor Court of the 24th Region), but the challenge has not yet been judged.

The use of LGPD terms in labor claims has been growing. In 2021, at least 2,048 cases initiated in the Labor Court cited the law and terms such as just cause or moral damages in their initial petitions, according to a survey by the jurimetrics startup Data Lawyer Insights. Most of these processes are still pending completion.

Digital law specialist Rosana Pilon Muknicka, from Tocantins & Pacheco Advogados, says that the matter needs to be dealt with in a multidisciplinary way in companies, and not just by HR departments, as it could affect contracts and processes prior to the law.

In December, the TST (Superior Labor Court) Subsection I Specialized in Individual Agreements applied the LGPD to convict a logistics company in a process initiated by the Public Ministry of Labor in 2018.

Providing risk management services to carriers and insurance companies, the company provided data on self-employed drivers to its contractors. According to the MPT, personal information and credit restriction data were used in registrations, then used to support the hiring of drivers.

Lawyer Fernanda Mendes, labor partner at Tocantins & Pacheco Advogados, says that it is common for contracts to have information protection clauses and emphasizes that responsibility is mutual. “The company can also use the LGPD to protect itself if someone accesses employee and customer data,” she says.

For Rosana Muknicka, the data protection law requires companies to rethink the type of information required from their employees and for what reasons they are needed. “Why do you want to know your employee’s religion? If it’s because there is a cafeteria and you need to provide for dietary restrictions, ask that question, not the religion question.”

The specialist also says that the use of LGPD is not restricted to the Labor Court. Whenever there is a violation, that is, leakage of personal data, the citizen must file the ANPD (National Data Protection Authority), which will be responsible for the investigation.