The financial sector is under increased scrutiny – and a significant portion of this risk, which is often underestimated, relates to labor issues.
In a recent decision, the Superior Labor Court (TST) ruled that labor courts lack jurisdiction to adjudicate social and environmental obligations related to the granting of credit, on the grounds that such matters are of a civil and regulatory nature; however, labor courts retain jurisdiction over working hours, union classification, outsourcing, and liability among companies within the same group.
This distinction takes on added relevance for fintechs and payment institutions, whose differences from traditional financial institutions are already producing concrete and largely unresolved labor implications – particularly regarding working hours, union classification, and equal pay – which requires assessing the classification of their activities and employees based on the service actually provided, rather than solely on formal classification.
Given this scenario, the following is recommended for banks, fintechs, and payment institutions:
1. Map the legal and union classification of each entity within the economic group, based on the activity actually performed and not merely on formal or corporate classification.
2. Audit the compatibility between actual working hours and the applicable legal regime, paying special attention to positions with functions similar to those in the banking sector.
3. Review outsourcing structures and the provision of services by legal entities (so-called “pejotização”) in light of the ongoing debate in the Federal Supreme Court (STF) on the subject.
4. Align internal policies, contracts, and governance structures with emerging regulatory trends, anticipating compliance requirements that are likely to extend to the labor sphere.
5. Compile documented risk dossiers, prioritized by degree of exposure, to guide strategic decisions and potential negotiations.
The Financial Stability Board (FSB) recommends strengthening risk identification, monitoring, and mitigation frameworks in non-bank financial intermediation, with greater cross-border cooperation and attention to regulatory differences between banks and non-banks; as these institutions move closer to the regulatory standards of banks, increased oversight of systemic risk tends to broaden the scope of audits and due diligence, which may also cover staffing structures, outsourcing contracts, and labor compliance policies.
Companies that anticipate this convergence – by reviewing their legal framework, working hours, and staffing structure before they become the subject of litigation or regulatory scrutiny – transform a regulatory risk into a competitive advantage in governance.
