As of September 2026, there is no binding precedent on employment status between workers and digital platforms in Brazil. Theme 1291 of general repercussion before the Federal Supreme Court (STF), whose lead case is Extraordinary Appeal No. 1.446.336, reported by Justice Edson Fachin, addresses exactly whether app drivers should be recognized as employees or as self-employed workers, and it remained without a concluded decision on the merits after repeated postponements. At the Superior Labor Court (TST), the picture is one of divergence between panels: there are rulings recognizing employment status and rulings rejecting it. Until the STF settles the matter, the analysis remains case by case, focused on facts rather than on the label used in the contract.
For companies, that means one thing: the risk cannot be eliminated today, but it can be managed. And it is managed through the reality of the relationship, not the wording of the instrument.
What the law requires for employment status
Articles 2 and 3 of the Brazilian Labor Code (CLT) remain the starting point. There is an employment relationship when the following are present at the same time: personal performance, meaning the service is rendered by a specific individual who cannot freely send a substitute; remuneration, with payment for the work; non-occasional work, with continuous integration into the company's activity; and subordination, the most disputed element, which involves the worker's submission to the directive, supervisory and disciplinary power of the party taking the service. To these is added the risk of the business, which by definition belongs to the employer.
The platform controversy revolves almost entirely around subordination. The legal debate has even acquired its own name, algorithmic subordination, and asks whether control exercised by software, through task allocation, pricing, star ratings, incentives and automated deactivation, is equivalent to the personal command of the classic employer.
What the TST has already decided
On April 11, 2022, the Third Panel of the TST recognized an employment relationship between a driver and Uber do Brasil Tecnologia Ltda., in case RR-100353-02.2017.5.01.0066. The ruling, based on the opinion of Justice Maurício Godinho Delgado, found the elements of employment to be present and stressed that continuous technological monitoring, the hours actually worked and the individualized passenger rating system amounted to subordination, noting that algorithmic control can be even more intense than traditional control.
Pulling the other way, the Fifth Panel of the TST, in a decision reported by Justice Breno Medeiros in case RR-1000123.89.2017.5.02.0038, rejected employment status. The central ground was autonomy: the worker's broad flexibility to set his own routine, hours, areas of operation and number of clients per day was considered incompatible with subordination. The panel also weighed the high share of the fare retained by the driver as an indication of partnership.
The correct reading of this body of case law is that there is no settled position at the TST, but rather competing lines of argument resting on different facts in each case. Companies with rigid control of working hours lose; those that can show real autonomy tend to win. Two practical consequences follow. The first is evidentiary: a company that keeps organized records of the freedom the worker actually enjoyed, such as tasks declined without consequence, irregular routines and simultaneous work for competitors, starts the case in a much better position than one that relies on the contract alone. The second is cultural: a single manager improvising a shift roster or a disciplinary message can undo a contracting model built over years, because courts look at the daily routine, not at the intention behind the design.
Theme 1291 before the STF
Extraordinary Appeal No. 1.446.336 was designated Theme 1291 of general repercussion and addresses the recognition of an employment relationship between an app driver and the company running the platform. The reporting justice is Edson Fachin. The case was scheduled and postponed more than once, including in 2026, and as of early September 2026 no binding thesis had been set.
Three outcomes are technically possible and are being debated: recognition of employment status, bringing the model closer to the CLT; rejection of employment status, consolidating the autonomous partnership thesis; or a middle path, granting social rights and social security protection without full employment status. Because the case carries general repercussion, the thesis eventually set will be binding and will reach the thousands of cases currently stayed or pending.
What about legislation
In Congress, Complementary Bill No. 12/2024, introduced by the Executive Branch, deals with work intermediated by companies operating private individual passenger transport apps using four-wheel vehicles and creates social security inclusion mechanisms and other rights. Filed on March 5, 2024, the bill received a favorable opinion from the rapporteur, with a substitute text, at the Industry, Commerce and Services Committee of the Chamber of Deputies, and was withdrawn from the agenda by agreement on July 2, 2024, remaining ready for deliberation in that committee. In other words: it is not law, and it should not be treated as if it were.
While there is no binding thesis and no enacted statute, a company's best investment is not legal, it is operational: designing the relationship so that autonomy is genuine.
How to reduce risk in contractor and platform arrangements
This applies to transport, delivery, technology, marketing, customer service and to iGaming operations that work with affiliates, streamers, analysts and outsourced squads.
- Real autonomy over working time. No imposed shifts, no minimum availability requirement, no punishment for declining a task. Delivery targets are acceptable; time clocks are not.
- No personal performance requirement. The contractor may send a substitute or work through its own team. A clause requiring performance by a named individual pushes the relationship toward employment.
- Exclusivity out of the contract. A contractor who serves other clients is strong evidence of autonomy, and preventing that without consideration is unnecessary risk.
- No hierarchical structure. Keep contractors off the org chart, with no direct manager, no internal performance review, no disciplinary warnings and no mandatory participation in team rituals.
- A contract consistent with practice. Defined scope, price per delivery or per project, term, intellectual property, confidentiality and compliance with Brazil's General Data Protection Law (LGPD). An excellent instrument combined with the routine of an employee protects no one: the primacy of reality prevails.
- Communication and evidence. Messages telling someone to clock in, justify an absence or consider themselves suspended become evidence. Train your managers.
- Governance of affiliates and influencers. In iGaming, labor risk stacks on top of regulatory risk: beyond the employment discussion, there is liability for commercial communication produced by third parties.
What to do now
- Run a diagnostic of contractor and platform arrangements, comparing the contract with actual practice.
- Fix the critical points, above all control of working hours, de facto exclusivity and informal hierarchy.
- Provision for risk using scenarios, including the possibility of an unfavorable thesis in Theme 1291.
- Follow the STF judgment and the progress of Complementary Bill No. 12/2024, adjusting the model once there is a definition.
How our firm can help
We work on assessing employment status risk in contractor and platform models, on reviewing contracts and internal policies, on training leadership and on defending labor claims and public civil actions, including for technology companies and companies in the betting sector. No outcome can be promised in litigation, but exposure can be reduced by documenting and practising a genuinely autonomous relationship before the discussion reaches a courtroom.
