The 4th Panel of the Brazilian Superior Labor Court (TST) recognized that employees of a fintech of payment methods cannot be equated with bank employees, even if only for the purposes of labor and employment rights.
The actions that have reached the TST seek to classify payment method companies in the financial category, in which case the employment contract becomes governed by the collective bargain agreement of bank employees, generally more advantageous, such as, for example, working hours six hours a day (30 hours a week).
However, the activities of payment method companies are incompatible with those of financial institutions in the eyes of the Brazilian Central Bank, due to an express legal prohibition. The activity of means of payment is governed by Law No. 12,865, of 2013, which provides for payment arrangements and payment institutions that are part of the Brazilian Payment System (SPB – Brazilian Acronym), which expressly prohibits the performance of these companies in activities carried out by institutions financial institutions regulated by the Brazilian Central Bank.
In this case, the Brazilian Regional Labor Court of Rio de Janeiro had understood that the evidence demonstrated that the company acted as a financial company and not just as a payment method company, because in addition to managing credit cards, the company allegedly performed services of “ credit, financing or investments”.
The fintech appealed the decision to the Superior Labor Court (TST – Brazilian Acronym), and, for the Reporting Judge of the case at the TST, Judge Maria Cristina Peduzzi, as credit card operators act only as intermediaries between the end user, commercial establishments and financial institutions, which are regulated by the Central Bank of Brazil, payment method companies do not, as a rule, qualify as financial institutions.
The Reporting Judger highlighted that “the classification of the activities carried out by the employee as belonging to a (non-financial) payment institution is sufficient to remove the status of a financial institution”, since intermediation and services do not mean that they actually performed the services of financial institutions.
We highlight that, fortunately, this decision is in line with the majority understanding of the TST on the subject, which, since 2020, has been taking a position in the sense that employees of fintechs, and other means of payment, act in fact as banking correspondents and cannot be classified as banking or financial institutions, therefore recognizing the regularity of the companies before the Brazilian Central Bank and the absence of labor rights for bank employees to the employees of these companies.
