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Pre-screening, screening and post-employment screening: What to say?

By 5 Setembro, 2023Outubro 30th, 2023No Comments

As a result of the free movement of people and growing international labor mobility, employment law is increasingly sprinkled with (mostly) Anglo-Saxon expressions. We are talking about (i) on and off boarding processes (admission and integration on the one hand and, on the other, preparation for leaving or dismissal) of professionals, (ii) background screening and employment screening (investigation of contingencies prior to the employment relationship and during its execution), and (iii) possible non-competes (non-competition after termination), non-solits (which includes non-competition after termination, in the form of non-solicitation), NDAs (non-disclosure agreements) and other ad hoc regimes, such as clawbacks, retention awards and garden leaves.

The world of human resources demands increasing creativity and keeping up with new trends. This goes far beyond simple vocabulary, but above all business and employment practice, which in turn requires a progressive adaptation of the professional’s profile to the job to be held in the company, and is transversal and applicable to all stages of the employment relationship.

The phenomena of screening – which accompany the employment relationship from: (i) its formation (pre-screening), (ii) its execution (screening) and its termination and subsequent moments (post-employment screening) – are indicative of what we are trying to explain

Screening powers (at each stage) have been understood as a functional power of employers that can, at the limit, transcend the protection of business assets (e.g. intellectual property and business secrets), while protecting certain interests of the employee, such as their own health and safety (e.g. mental health) or the protection of third party interests (e.g. protection of data of customers, suppliers, distributors and business partners).

However, this type of procedure – sometimes imported from other realities or as a result of the group adaptation of multinationals – needs special attention. In particular, in accordance with (i) the discipline of the parties’ personality rights (see arts. 14 et seq. of the CT (Labour Code), (ii) information on the use of algorithms and artificial intelligence (art. 106(3)(s) of the CT), or automated procedures without human intervention (art. 22 GDPR), and (iii) the commands of equality, non-discrimination and inclusion in the workplace (arts. 23 et seq. of the CT).

Now, more than ever, the implementation of so-called “external” practices, or those of group or multinational suitability, require labor due diligence (DD). Experience thus dictates the need for contemporary labor law to express what should be one of its essential characteristics: practicality.

Tiago Sequeira Mousinho @ DCM | Littler