Isabela Cristina Grilo
Lawyer at Marcos Martins Advogados
There is a lot of talk these days about compliance, which means, in short, acting in accordance with legal or internal company requirements.
In this respect, the notion and practices of compliance or labor compliance, which dictate the mechanisms for preventing and solving problems in the company’s relations with public authorities, clients, suppliers and employees, has been gaining ground in the business world, with an increase in the search for ways to make commitments to the law and ethics, so that acts make corporate life whole.
Among the compliance guidelines is the notion of due diligence, which can be seen as a prior assessment for hiring partners, service providers and employees, as well as subsequent assessments, in order to identify the history and situation of the company with which the deal is to be signed, thus seeking to protect itself from avoidable labor claims and liabilities.
Due diligence is of the utmost importance as a risk factor control mechanism, since even if the company has a good compliance policy and is committed to the law, it will inevitably find itself on the verge of doing business with individuals or companies that may not be in compliance with the rules, and may commit illegal acts with drastic financial consequences, as well as tarnishing the name of the company that is in compliance and has a good reputation in the market.
In order to exemplify the concept of due diligence, we can think of contracting outsourced services, which at first (pre-contractual phase), would entail diligence with analysis of documents and information to verify the structure, financial situation and solidity of the service provider, with identification of liabilities that impact on the value of the transaction, tax, labor and social security risks.
However, knowing that due diligence is not a one-time process, it should be continued after the outsourced services have been contracted (post-contractual), as in the example cited, in order to ensure compliance with labor obligations and to avoid the risk of the assets of the company in question or its partners being subject to constrictions for payment of a labor debt owed by the contractor.
Unfortunately, it seems that some companies only pay attention to the initial due diligence, failing to carry out studies on the day-to-day activities of their employees and/or partner companies, which facilitates the occurrence of harmful acts in the face of non-compliance situations.
In this context, an emblematic example concerns the act of violence promoted by outsourced security guards of a large supermarket chain, which caused the death of a consumer after he was brutally beaten.
The same supermarket chain was also in the news when aggression by a third-party security guard caused the death of a dog that insisted on roaming around the premises.
This event caused outrage and left its mark on the company’s image, as well as prompting the intervention of the Public Prosecutor’s Office, on which occasion the company was forced to sign a commitment to donate R$1 million to a special fund for the purchase of medicine and animal feed for protection associations and NGOs, as well as for the sterilization of dogs and cats.
The lack of compliance precepts, by means of effective due diligence, ended up causing a huge stain on the company’s image, since it was not ensured that the employees involved in any non-compliance situation were prepared to act on behalf of the company.
And that’s not all. In addition to the moral and civil risk, where there may be a duty to compensate, the labor risk in these cases is considerably increased.
Due diligence should be seen as an ongoing process, with an overview of the company and what adjustments will be necessary to define strategies and goals, as well as security in terms of mitigating liabilities and/or inspections, saving resources and strengthening the culture.
Thus, due diligence, as one of the pillars of compliance, should be applied with the aim of identifying and promoting preventive actions with the sole purpose of eliminating or reducing labour risks – an opportunity that should rely on a specialized legal team, which ensures actions that comply with the law, both in terms of prevention, with guidance, and to curb non-compliant acts.
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