Collective moral damages for non-compliance with the Quota Law for people with disabilities (PwD)

Did you know that your company may be held liable for collective moral damages for failing to comply with the Law on Quotas for Persons with Disabilities (PwD), as established by Law No. 8,213/91? This legislation regulates the legal hiring quota for rehabilitated or disabled people (PwD), requiring companies with 100 or more employees to reserve a percentage of their positions for these individuals. 

The Quota Law for PcD 

Law No. 8,213/91 requires companies with 100 or more employees to fill a percentage of their positions with people with disabilities or those rehabilitated by the INSS (National Institute of Social Security). The percentage varies depending on the company's number of employees: 

• 2% for companies with 100 to 200 employees 

• 3% for companies with 201 to 500 employees 

• 4% for companies with 501 to 1000 employees 

• 5% for companies with more than 1000 employees 

However, many companies still fail to comply with this law. Companies often report difficulties in finding qualified professionals or those willing to fill these positions. However, it's important to emphasize that the legislation requires more than simply filling vacancies; it requires companies to adapt their practices to promote inclusion. 

Inclusion and adaptation in hiring 

Although the hiring process for people with disabilities requires specialization, companies can develop programs to train and develop candidates with disabilities, enabling them to meet both the law and employer demands. Furthermore, it is essential that companies adapt their work environment and recruitment processes to ensure accessibility and inclusion of people with disabilities in the workplace and seek partnerships with organizations.  

Collective moral damages in Labor Law 

Collective moral damage occurs when a violation of labor rights or abusive practices affects a group of workers, rather than harming just one individual. Liability for this type of damage falls on the employer, who, by engaging in conduct that is harmful to the group, whether through negligence or deliberate actions, harms the human dignity of workers. 

In the courts, especially the Superior Labor Court (TST), collective moral damages have been widely discussed and applied. Compensation for these damages seeks to compensate the group of workers affected by the employer's conduct, with the amount of compensation determined by the severity of the violation, the number of people affected, the circumstances of the case, the company's economic capacity, and the educational nature of the penalty.  

Recent conviction judgment  

The 69th Labor Court of São Paulo (SP) ordered an outsourced services company to pay R$500,000 in collective moral damages for its repeated failure to meet the legal hiring quota for rehabilitated or disabled people (PwD). The company, which should have employed 28 people with disabilities, had only four at the time of the lawsuit. 

Judge Márcio Aparecido da Cruz Germano da Silva stated that the employer's communication was a generic advertisement, listing an email address for candidates, without proof that it was actually distributed. "Such weak and isolated evidence does not override the robust documentary evidence presented by the plaintiff, based on years of official data, which attests to the chronic failure to comply with the legal obligation." 

In addition to compensation for collective moral damages, the decision established a 120-day deadline for the organization to fill the legally required percentage, without excluding any positions or functions, under penalty of a fine of R$10,000 per disabled or rehabilitated employee missing the required amount, renewable monthly. The judge also ordered the defendant to refrain from dismissing anyone benefiting from the vacancy reserve without first hiring a replacement in a similar position, also under penalty of a fine of R$10,000, renewable monthly. 

Prevention and compliance with the law 

To avoid noncompliance with the Quota Law and potential penalties for collective moral damages, it is essential that companies comply with legal hiring procedures and ensure compliance with the quota. Compliance can be verified through documents such as the medical report attesting to the PwD status and the registration of employment contracts in the government system. 

Legal advice and compliance 

It is essential that companies have specialized legal counsel and compliance programs to ensure they are in compliance with Law No. 8,213/91. Furthermore, partnerships with organizations that promote the inclusion of people with disabilities in the job market and the promotion of exclusive job openings for people with disabilities are essential measures to promote true inclusion and avoid potential legal liabilities. 

Conclusion  

To avoid these penalties, companies must take proactive measures, such as adapting their hiring practices, promoting an accessible environment, and implementing inclusion programs for people with disabilities. Specialized legal advice and the creation of a compliance program are essential to ensure companies comply with the law, avoiding future legal liabilities, and, most importantly, contributing to building a more inclusive and fair corporate environment for all.