Public and private schools across the country must require their teachers and staff to present a criminal record certificate starting this school year. The measure is one of the new rules of the National Policy for the Prevention and Combat of Abuse and Sexual Exploitation of Children and Adolescents, sanctioned by President Lula (PT) at the beginning of January.
When instituting the new policy, the government changed the Penal Code and the Child and Adolescent Statute to adopt a series of actions with the aim of protecting children and adolescents from violence in the school environment. The new rules are one of the federal Executive’s responses to try to curb attacks on schools — episodes that have grown unprecedentedly in the country in the last two years.
In addition to classifying the crime of bullying, including virtual bullying, and including a series of acts against children under 18 in the category of heinous crimes, the new policy also established new rules that schools must follow. One of them is that institutions must require a criminal record certificate from all employees.
According to the rule, updated certificates must be presented every six months.
The law came into force on January 15, the day its sanction was published in the Official Gazette of the Union. The requirement applies to all employees, even those who already worked in the unit.
Specialist in labor law, Mariza Machado highlights that schools need to be attentive to compliance with the new law and be careful with the decisions they will make after evaluating the certificates, otherwise they risk committing a discriminatory act.
“The law determines that schools require the certificate, but it does not say what they must do when they receive a positive criminal record certificate. In other words, they must evaluate case by case and with caution. Just having a conviction does not imply that that professional is not able to work with children. It is necessary to assess whether the act carried out could have any impact on the activity he will carry out at school”, says Mariza, who works at the business management consultancy IOB.
According to the TST (Superior Labor Court), a criminal record certificate may be required at the time of hiring in specific cases, when the professional activity justifies the presentation of the document.
The court defines, for example, that documentation can be requested for domestic employees, workers who work with confidential information and caregivers of minors, the elderly or people with disabilities. According to the court, if the request is unfounded or involves discriminatory treatment, it may constitute moral harassment subject to compensation.
For legal experts, the court’s definition is the basis for federal law that determines the collection of certificates for those who work in schools.
“There are those who argue that the requirement violates the right to privacy, but there is also the understanding that there are cases in which the public interest overrides private law. In my opinion, this is the case: the public interest overrides, since These are people who will work with children and adolescents”, says Paulo Renato Fernandes, professor at FGV-Rio and specialist in labor law.
“It is an important measure to prevent, for example, a person convicted of pedophilia from trying to get a job at a school in a city or state far from where they committed the crime”, says Fernandes.
Experts, however, emphasize that schools must use common sense when evaluating cases of positive criminal record certificates. “A person who has a lighter conviction, for a theft, for example, is not necessarily a risk. Therefore, caution is needed in the assessment to avoid cases of discrimination”, says Mariza.
“In case of doubt, schools can consult the category’s union to avoid any future problems with the Labor Court”, advises the specialist.
A Sheet questioned the municipal and state Education departments of São Paulo about compliance with the new law. In a note, the State Department of Education, managed by Tarcísio de Freitas (Republicans), said that it already requires a criminal record certificate for teachers, public servants and temporary workers, in addition to school security guards before carrying out their duties.
The ministry informed that a commission will be created to establish the parameters that will guide compliance with the change in legislation. “Among the group’s responsibilities will be establishing the periodicity with which the more than 200 thousand Education professionals, who work in the network and have contact with students, will have to update their criminal record certificate and possible punishments for non-compliance with the rule” , explained the secretariat.
The Municipal Department of Education, managed by Mayor Ricardo Nunes (MDB), reported that it is still in the “process of adapting its internal procedures”.