Mariana Saroa de Souza
Lawyer at Marcos Martins Advogados
The Regional Court of the 2nd Region has ruled that it is lawful to visually search the bags and backpacks of employees of a retail company.
Judge Maria Inês Re Soriano overturned an injunction that prevented a general merchandise retailer from visually searching its employees’ purses, backpacks and bags.
At first instance, the 2nd Labor Court of Carapicuíba/SP, ordered the employer to refrain from:
- subject their employees to any intimate search procedures, including their purses, backpacks, bags and the like, as well as other personal belongings and objects, at any time during working hours, including when entering and leaving the establishment; and
- subject their employees to any searches of their clothing, such as pockets, pants, coats, etc.
Not agreeing with this decision, the company took the matter to the Regional Court for analysis, pointing out that at no time were employees strip-searched, but only visually, in bags and backpacks, and that there were no requirements capable of giving rise to and constituting an illegal act to justify granting the injunction.
When assessing the writ of mandamus, the judge upheld the company’s grounds. In line with the magistrate’s decision, “the probability of the right lies in the concept of intimate search (item IV of art. 373-A of the CLT) which, according to the majority of case law, is not one in which the employer limits himself and, by simple visual contact, that is, without touching, checks the contents of employees’ bags and backpacks”.
For the Judge, the danger of damage was verified, given that the company is a retailer and wholesaler of goods in general, “in the risks to the security of its establishment and the protection of its assets”, thus substantiating the decision that overturned the order issued by the 2nd Labor Court of Carapicuíba/SP, considering the visual search carried out by the company on employees’ bags and backpacks to be lawful.
It is true that the issue of intimate searches is a relevant and extremely controversial topic in the Labor Courts, requiring companies to be legally supported to adopt the best practices, avoiding risks that could negatively impact both their image and the viability of the business, advice that Marcos Martins Advogados is able and prepared to offer.
