PEJOTIZAÇÃO: FLEXIBILIZAÇÃO OU DESREGULAMENTAÇÃO? PEJOTIZAÇÃO: FLEXIBILITY OR DEREGULATION?

This article studies the so-called "pejotização", a fairly common phenomenon in the field of labor law. It contextualizes the problem by presenting the concept, the origins and the causes of "pejotização", pointing out, in a second moment, the effects and the appropriate legal solution to the cases of procurement of services through a third entity. Firstly, the article presents a brief historical overview of labor law at both national and worldwide perspectives, highlighting social and economical forces that favored its development, as well as relevant achievements in the legislative branch to the workers and, consequently, to the society in general. The present article also examines the phenomenon of labor market flexibility, defining limits and comparing its legal nature and the consequences of "pejotização". Then, it analyzes the feasibility and legality of "pejotização" by ascertaining the existence of assumptions of employment, subjecting it, later on, to the scrutiny of labor principles that are related to the subject, especially with regard to the imperative of standards, non-waiver of labor rights and the primacy of reality. Afterwards, the article points to labor market conditions and the growing incidence of "pejotização" in Brazil after the Constitution of 1988. It concludes, finally, that, in the light of the principles of labor law, Brazilian workers do not have the conditions to choose which applicable law will govern their contract, especially because, once verified the presence of both factual and legal elements in the employment relationship, recognizing the existence of an employment contract is mandatory; therefore, the incidence of labor legislation is unremovable. [ABSTRACT FROM AUTHOR]