The Brazilian legislation in force requires all companies established in Brazil, either Brazilian or foreign, with at least 100 employees, to enter into employment agreements with people who have disabilities. The current disability quota is calculated according to the total number of employees working at the headquarters and the branches of the companies. The mandatory percentages, which vary from 2% to 5%, are applied to such total number.
The Brazilian authorities, including the labor inspectors and the attorney-in-fact of the Labor Prosecutors Office, have been rigorously enforcing the law by means of inspections, which result in imposition of fines and filing of class actions to force the companies to comply with the quota for disabled people. A significant majority of companies have been trying to demonstrate the difficulties in complying with such quota; however, the authorities with powers to monitor it have not been making any concessions.
However, there are judgments passed by the Brazilian Justice that interpret the law in a less strict manner and at times annul penalties imposed by the above-mentioned agencies. Although the Brazilian legislation does not expressly take into account, for any purposes, the ongoing efforts the companies expend to hire disabled workers, the voluntary investments to train disabled people for the labor market, and the hiring difficulties experienced by the entrepreneurs, the precedents have been more favorable in situations like these.
In mid-2013, the Regional Labor Court of São Paulo passed an unprecedented judgment exempting the company Swissport from the duty to consider all the existing activities (administrative and operational) in its basis for calculation of the quota. The operational activities, understood as those performed in the areas where aircrafts are maneuvered in the Brazilian airports, were excluded from the basis for calculation, as they pose risks to disabled people.
In a recent judgment passed in November 2014, the Regional Labor Court of Minas Gerais amended another judgment that acknowledges the difficulties in hiring people with disabilities. The Court of Minas Gerais found that the companies cannot be punished if they are able to demonstrate their ongoing efforts to hire disabled people and the impossibility of complying with the quota due to lack of applicants for the positions available. (Regional Labor Court - MG - Ordinary Appeal no. 000295-76.2014.5.03.0183)
In view of the difficulties faced to comply with the quota for disabled people, several companies have been taking this matter to the Brazilian courts, certainly inspired by more reasonable opinions of jurists that take into account the limited alternatives provided for in the legislation.
As mentioned before, the Brazilian legislation in force does not admit exceptions to justify noncompliance with the law; a company is deemed to have failed to comply with the law if it simply does not employ a specific number of disabled people. There are two Bills pending approval of the Brazilian National Congress that may either worsen the current situation or promote a debate about the alternatives to make the Law compatible with the reality of the companies nowadays. The Bill no. 2973/2011 makes things even harder for the companies, as it extends the obligation to comply with the law to small companies (having more than 30 employees), and increases the applicable percentages to 4%, 6% and 8%. In turn, the Bill no. 1240/2011 enables the adoption of alternative measures to overcome the difficulties to hire disabled people. It maintains the percentages currently applicable, but allows those companies having trouble to hire the required number of disabled people to allocate the amounts corresponding to the cost of hiring them for professional training of disabled people. Although this last alternative entails significant financial investments, it opens the discussion about other measures to comply with the law.
It is certain that until the Brazilian lawmaker does not propose legal changes that reflect the current situation, that is, that take into account the difficulties faced by the great majority of companies, one of the possible solutions is the company demonstrating such difficulties in court, depending on the evidence available.
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