Family care on the labor law boundaries: a feminist critique of jurisprudence

Abstract

Feminism has been criticizing for decades the boundaries that structure Western Thought and that divide public and private, paid and unpaid, work and family. These boundaries constitute labor law, which, in turn, produces its boundaries, separating what is and what is not the object of its legal regulation. Hierarchies are built between dichotomous concepts, and one of the poles is privileged - socially, economically, and politically - about the other. In this context, family care is considered an activity in the private/intimate sphere, free of charge, arising from a family and feminine duty - and not a work capable of generating rights. Based on these theoretical formulations from the feminist field, the main objective of this article is to reflect on the boundaries constructed by jurisprudence that leave family care outside the scope of labor regulation. For this analysis, a jurisprudential search was carried out on the Tribunal Regional da Terceira Região (TRT-3) website in search of decisions discussing the recognition of domestic employment in family relationships in the context of providing care work. As a result, 9 (nine) court decisions were identified, and none recognized a domestic employment relationship, despite the national legal system not prohibiting this possibility. Based on the jurisprudential analysis undertaken, it is concluded that the mere existence of a family relationship makes it impossible, in the opinion of the judges, to recognize an employment relationship, since the management of care by a family member is not seen as subordination; that payment for care is not seen as remuneration; and that care is not seen as work but as help, assistance and a family duty of reciprocity/solidarity. In this way, judges carry out work to reaffirm boundaries between family relationships - intimate, affective, arising from kinship ties and inserted in the logic of the duty of solidarity - and employment relationships, these of an economic nature, arising from the employment contract and eligible for the attribution of labor rights.

Keywords:
Family care; Domestic employment; Feminist critique of labor law; Jurisprudential analysis

Resumo

Os feminismos vêm criticando há décadas as fronteiras que estruturam o pensamento ocidental e que dividem o público e o privado, o pago e o não pago, o trabalho e a família. Essas fronteiras constituem o direito do trabalho, o qual, por sua vez, produz suas próprias fronteiras, separando o que é e o que não é objeto de sua regulação jurídica. Hierarquias são construídas entre os conceitos dicotômicos, e um dos polos é privilegiado - socialmente, economicamente e politicamente - em relação ao outro. Nesse contexto, o cuidado familiar é considerado uma atividade da esfera privada/íntima, gratuita, oriunda de um dever familiar e feminino - e não um trabalho apto a gerar direitos. Partindo dessas formulações teóricas do campo feminista, o objetivo principal deste artigo é o de refletir sobre as fronteiras construídas pela jurisprudência que deixam de fora do escopo da regulação trabalhista o cuidado familiar. Para essa análise, foi realizada uma pesquisa jurisprudencial no site do Tribunal Regional da Terceira Região (TRT-3), em busca de decisões em que se discute o reconhecimento de vínculo empregatício doméstico em relações familiares, no contexto de uma prestação de trabalho de cuidado. Como resultado, foram identificados 9 (nove) acórdãos, e em nenhum deles houve reconhecimento de vínculo de emprego doméstico, apesar do ordenamento jurídico nacional não vedar essa possibilidade. A partir da análise jurisprudencial empreendida, conclui-se que a mera existência de uma relação familiar impossibilita, no entender dos julgadores, o reconhecimento de vínculo empregatício, uma vez que a gestão dos cuidados por algum membro da família não é vista como geradora de subordinação; que a contraprestação pelos cuidados não é vista como remuneração; e que o cuidado não é visto como trabalho, mas como auxílio, prestação assistencial e dever familiar de reciprocidade/solidariedade. Dessa forma, os julgadores empreendem um trabalho de reafirmação de fronteiras entre relações familiares - íntimas, afetivas, oriundas dos laços de parentesco e inseridas na lógica do dever de solidariedade - e relações empregatícias, estas sim de caráter econômico, oriundas do contrato de trabalho e passíveis de atribuição de direitos trabalhistas.

Palavras-chave:
Cuidado familiar; Vínculo empregatício doméstico; Crítica feminista ao direito do trabalho; Análise jurisprudencial

I Introduction

The main objective of this article is to reflect on the boundaries of labor law constructed by labor jurisprudence that exclude from family care its scope, that is, the work carried out by caregivers - usually women - on behalf of family members dependent on assistance for daily activities.

For the jurisprudential analysis, a research was conducted on the website of the Regional Labor Court of the Third Region (TRT-3), using the following navigation: jurisprudence - full decisions - textual search, on July 21, 2022, with the following keywords: domestic employment bond (in the field with all the words) and family relationship (in the field with the expression). Of the 25 (twenty-five) results found, only those discussing the recognition of a domestic employment relationship within family contexts, in situations involving the provision of care work for dependents, were selected. Thus, 9 (nine) decisions matching these characteristics were identified.

Among the 16 (sixteen) discarded decisions, 13 (thirteen) addressed various topics irrelevant to the research, and three addressed the recognition of domestic employment relationships within family relations involving domestic work. Despite the strong interface of these latter cases with the discussions pursued in this study - particularly because domestic work can be considered a form of care - these three decisions were excluded from the analysis since the primary focus is to understand the specificities of direct care for dependents in the judges’ discourse. It is also worth noting that none of these three decisions recognized the existence of a domestic employment bond¹.

In the case of the selected decisions², none of them recognized the existence of a domestic employment relationship, neither at the trial court nor the appellate level. Although the decisions mentioned the absence of the legal requirements necessary for an employment relationship, the main argument developed centers on demonstrating that the services were rendered within a familial and affective context rather than an employment context, as if, in the judges' understanding, an intimate/family relationship could not simultaneously be characterized as an employment relationship in the context of care work. In this sense, many decisions acknowledge the legal possibility of employment relationships among family members, and, subsequently, proceed to emphasize the familial nature of the services rendered, contrasting it with services performed in the context of employment relationships. In this context, it can thus be concluded that labor jurisprudence constructs legal boundaries that exclude family care from the scope of labor law, reaffirming the rigid distinctions between intimate and economic relations.

I adopt the concept of legal boundaries as the limits or divisions between what is and what is not subject to legal regulation, resulting in hierarchies and exclusions (CONAGHAN, 2005). These boundaries are neither natural nor fixed - they are continuously constructed and reconstructed, contested and negotiated within discourses strongly permeated by moralities. In this respect, I regard law as a discourse of power and a gendered practice, a product of society, but also a producer of identities and subjectivities (FUDGE, 2016).

It is also important to note that the legal boundaries concerning family care correspond to broader moral boundaries that structure Western thought, notably the division between the public and private spheres (TRONTO, 2009). Criticism of the separation and hierarchy between these two spheres was central to the debates of the second wave of feminism, a period in which the political entanglement of oppressions occurring within the domestic sphere began to be intensely discussed, particularly in relation to topics such as sexuality and domestic labor (FOUGEYROLLAS-SCHWEBEL, 2009; FRASER, 2009).

Looking at the feminist debate within labor law, one can observes criticisms of the boundaries that delimit the scope of the discipline and the defense of its expansion to encompass unpaid care work (CONAGHAN, 2005; VIEIRA, 2018). It is also worth noting a trend within feminist labor law scholarship to abandon the notion that legal reforms alone can offer solutions to gender inequalities through a critical study of law aimed at revealing its discursive contours and understanding it as a gendered practice that produces identities (FUDGE, 2016).

I use these arguments as an analytical framework to critique the legal exclusion of family care by Brazilian labor jurisprudence, which operates by drawing distinctions between employment and family relationships, as if the intimate and the economic were mutually exclusive and contradictory spheres, without deeper consideration of how these spheres intersect within social relations.

II Feminist critiques of the boundaries between public and private

Carole Pateman (1993) is a major reference in the discussion about the separation between public and private, especially in her work The Sexual Contract, in which the author argues that social contract theory, while grounding the notion of men's freedom in the public sphere, also legitimized female domination in the private sphere. In this sense, the social contract was also a sexual contract, distinguishing these two realms of life, the public being the place of politics, freedom, and men; and the private as the place of affections, subjugation, and women (PATEMAN, 1993).

When looking at the sphere of labor, we perceive a social - and sexual - division between two types of activities developed in each of these two spheres, public and private, which are unequally assigned to men and women: on one side, productive labor is associated with men, socially valued, and compensated with money; on the other, reproductive labor is assigned to women, being socially devalued, and remunerated in terms of virtue and affection (KERGOAT, 2009; HIRATA; KERGOAT, 2007; FRASER, 2016).

Within this logic, care work has been socially organized, at different stages of capitalism, as a private, familial, and feminine responsibility, and left at the margin of the economy (FRASER, 2016). With the crisis of the male breadwinner/female caregiver model and the broad insertion of women into labor markets in various countries, women became providers, but men did not become caregivers (OROZCO, 2012).

The persistence of the sexual division of labor in the context of developed countries was termed by Arlie Hochschild (1995) as the stalled gender revolution: cultural, social, and economic changes led women into the labor market, but they continued to bear, alone, the responsibilities of caring for their families.

Looking at the Brazilian context, we observe the same movement of a strong integration of women into the labor market, on one hand, and the persistence of the sexual division of labor on the other, as pointed out by time-use research in the country (MEDEIROS; PINHEIRO, 2018).

International literature seeks to identify the determining factors behind the fact that women continue to perform more domestic work than men, among which is the economic dependency theory, according to which differences in time use are asymmetries of economic power - individuals (usually men) with more financial resources are able to offload their share of unpaid labor by attributing it to individuals with fewer resources (usually women), who are economically dependent on the former (MEDEIROS; PINHEIRO, 2018).

Another theory is the available time theory, according to which individuals with more available time perform more unpaid labor, an idea that frames the division of labor as a rational decision-making process by individuals (MEDEIROS; PINHEIRO, 2018).

These two theories, which relegate the cultural component of the sexual division of labor to a secondary role, are refuted by both international studies (PINHEIRO, 2016) and by Brazilian research (MEDEIROS; PINHEIRO, 2018).

In this regard, the most prestigious theory, supported by empirical data, is that of gender ideology, which argues that the sexual division of labor is of predominantly symbolic nature, tied to gender roles, that is, to social expectations surrounding masculine and feminine identities, reinforced by individuals themselves through their practices (MEDEIROS; PINHEIRO, 2018). There would not be, therefore, "[...] a simple trade-off between time spent in the market and time spent on domestic labor, nor a direct relationship between income (relative or absolute) and time in unpaid work" (MEDEIROS; PINHEIRO, 2018).

Data from time-use research in Brazil corroborate the idea that neither available time nor income are the determining factors for the division of domestic labor: employed women perform more unpaid labor than unemployed men; and women with higher incomes perform more unpaid labor than men with lower incomes (MEDEIROS; PINHEIRO, 2018).

III Feminist critiques of labor law boundaries

Judy Fudge (2016) provides an interesting overview of the main topics of feminist debate in labor law and identifies three significant theoretical shifts in this field of study between 1970 and 1990: i) the transition from using the category of women to the category of gender; ii) the defense of expanding the scope of labor law to include the analysis of the interdependence between paid and unpaid work; iii) the transformation of the instrumental view of law into a conception that considers it in its relationship with society.

The first shift relates to a broader feminist academic discussion, in which the category of "women" was gradually replaced by the notion of "gender," considered more appropriate for understanding sexual differences as social constructions, the result of social relations that exhibit specificities in each society and historical period (SCOTT, 1989; FUDGE, 2016). I will not delve into the intricacies of this discussion, since it is more relevant to the objectives proposed in this article to analyze the other two issues identified by Judy Fudge.

The second shift, linked to the defense of expanding the scope of labor law, also accompanied the broader feminist movement that redefined the traditional concept of labor to encompass domestic work (KERGOAT, 2016). In the French theoretical field, for instance, materialist feminists demonstrated that “[...] unpaid domestic work, excluded from the market, fully entered the category of exploited labor, and that the figure of the 'free worker' who sells their labor power was not the only exploited figure in our societies” (KERGOAT, 2016, p. 23).

During the 1990s, thus, the reflection that labor regulations were directed toward men was strengthened, given that full-time dedication to paid labor - standard employment - is feasible for those who bear no caregiving responsibilities and who rely on women in their families to satisfy their own and their dependents’ needs (FUDGE, 2016; CONAGHAN, 2005).

From the 1980s onward, standard employment entered into crisis in developed countries, leading to a proliferation of atypical - and precarious - jobs, and it was women who disproportionately occupied these positions, which offered more flexible schedules allowing for the reconciliation of work and family life (FUDGE, 2016; CONAGHAN, 2005).

At that moment, the idea of balancing work and family became a central issue in feminist labor law scholarship (FUDGE, 2016); the official narrative that these spheres were separate and autonomous began to be questioned in favor of the view that they are interconnected and interdependent - and, moreover, that their connection was permeated by gender (CONAGHAN, 2005).

In this sense, productive and reproductive concerns necessarily intersect and demand mutual accommodation and, in this context, the work/family divide emerges as a specific expression of this accommodation rather than as a natural or universal feature of social order. Moreover, once this functional and inter-constitutive relationship is recognized, work and family can no longer be posited as distinct and unrelated and their appearance as such is revealed to be the product of the particular way in which work is organized and the mechanisms and institutions - including law - which support and nurture that organizational form (CONAGHAN, 2005, p. 49).

It is interesting to note that Conaghan (2005) points to the role of law in organizing the particular manner in which labor is socially structured and, in this sense, how it produces hierarchies and exclusions through its boundaries, privileging some forms of labor to the detriment of others.

Labour law is beset by boundaries. The traditional delineation of its contours is strongly reliant upon the dichotomized pairing of concepts hierarchically positioned in relation to one another: public / private; work / family; paid / unpaid; employed / unemployed; formal economy / informal economy; typical / atypical workers; standard / non-standard work; regulation / deregulation; citizens / aliens, to name but a few. The invocation of these pairings maps neatly on to the inside and outside of labour law, with the first concept in each of the pairings belonging 'inside' and the second falling 'outside' the labour law frame (CONAGHAN, 2005, p. 67).

The third theoretical shift within feminist labor law scholarship was the understanding that law is not neutral and cannot be understood apart from broader social relations (FUDGE, 2016). In this regard, whereas in the 1970s and 1980s feminist labor law scholars approached law instrumentally, as a tool that could be used to combat inequalities between men and women in the labor market, thus advocating legislative reforms, in the 1990s, authors began to understand law differently, focusing on its discursive contours (FUDGE, 2016). They also began to pay closer attention to issues such as differences among women, incorporating the idea of intersectionality (FUDGE, 2016).

Law, then, came to be understood as a producer of discourses and identities:

[l]aw is an important site for the production of discourses that play a powerful role in shaping consciousness and behaviour. Some feminists consider law to be a gendering practice, which constitutes ‘male’ and ‘female’ subject positions and contributes to identity formation (FUDGE, 2016, p. 333).

In this regard, Judy Fudge (2016) endorses an idea - which she attributes to Joanne Conaghan - that “the scope of what counts as labor law is ideological and not conceptual” (FUDGE, 2016, p. 321).

The feminist critique of the boundaries of labor law, as well as other feminist reflections that criticize the rigid division between public and private, paid and unpaid, work and family, provides important arguments for reflecting on the distinction between employment relationships and family relationships drawn by judges in labor claims concerning family care, as I will seek to present later.

IV Family care at the social and legal boundaries

Nadya Guimarães (2019) conceives the interesting idea of care circuits to reflect on the different meanings, social relations, agents, and forms of compensation that a single concrete care activity can assume depending on the context in which it is performed, potentially being conceived as obligation, profession, or assistance (GUIMARÃES, 2019). In this sense, while care provided by caregivers, domestic workers, nannies, nurses is socially framed within the notion of profession, thus generating remuneration, but the same work performed by mothers, sisters, aunts, grandmothers, and granddaughters is regarded as an obligation, a family - feminine - responsibility, to be reciprocated in terms of affection (GUIMARÃES, 2019).

The boundaries between these care circuits, which can also be understood as boundaries between work and family, paid and unpaid, intimate and economic, are established, reaffirmed, and negotiated by the individuals involved in these relationships, who "[...] strive to establish barriers, to demarcate boundaries, which become visible both in the act of naming, and in the classificatory strategies embedded in it, as well as in the establishment of new practices" (GUIMARÃES, 2019, p. 04).

This demarcation of boundaries, that is, the distinction individuals make between their significant social relationships and other economic relationships with similar characteristics is referred to by Viviana Zelizer (2011) as relational work.

The author formulates interesting reflections on the commodification of intimacy and points to the position of those who believe that the crossing of the intimate sphere by the economic sphere would morally contaminate the former, turning genuine relationships into "superficial, fragile, and calculating relationships with others" (ZELIZER, 2011, p. 32). For the author, it is necessary to recognize that intimate relationships are permeated by economic transactions, as exemplified by the relationship between spouses, in which the production of a shared life is built not only on love but also on economic contributions to the common material well-being (ZELIZER, 2011, p. 38).

In this sense, economic transactions would not destroy social bonds, and in each specific relationship there is a negotiation of boundaries that differentiate intimate relationships from other "merely" economic ones (ZELIZER, 2011).

The fluidity of the boundaries between the intimate and the economic becomes even more complex when conflicts reach the legal arena, the field upon which Viviana Zelizer (2011) focuses her analysis. In this sphere, according to the author, there is a reproduction of social patterns separating economic transactions and intimate relationships, but there is also the production of such patterns (ZELIZER, 2011).

In this regard, we can infer that when individuals involved in family relationships file claims for the recognition of a domestic employment relationship, there is a transgression of the moral boundaries between the circuits of care as obligation and care as profession; and the legal response, heavily permeated by moral judgments, reaffirms the boundaries between work and family, intimate and economic, employment and family assistance, reinforcing family care as a duty.

These labor claims bring interesting elements for the reflection on how legal practitioners reinforce the boundaries of labor law, creating an opposition between employment relationships and family relationships, which further reinforces the invisibility of care as labor and denies rights to a large number of family caregivers.

It is important to note that it is not possible to conceive of “law” or “Labor Justice,” or the “Regional Labor Court of the Third Region (TRT-3),” as homogeneous, univocal structures carrying a unified intention or will, which would personalize them as if they were subjects. They are, rather, fields of dispute in which multiple actors participate, bearing different ideological and political positions and interpretations of legal norms.

Regarding the legal regulation of family care, it is noteworthy that there is no prohibition against the possibility of establishing a domestic employment relationship among family members, except between spouses³ (DELGADO, 2018). In the case of spouses, the prevailing doctrine understands that the existence of an employment relationship is not possible, on the grounds that recognizing an asymmetrical relationship, such as that of employment, in which there is subordination of one party, would contravene the principle of equality between spouses attributed to these relationships in the country (DELGADO, 2018, p. 440).

Recognizing, therefore, the possibility of domestic employment relationships within family contexts, many of the decisions analyzed reiterate the idea that "[...] kinship between the parties, in itself, does not preclude the existence of an employment bond, not even of a domestic nature" ⁴. Nevertheless, judges recurrently oppose the notion of kinship and affection to that of employment, as if they were mutually exclusive, even when the factual and legal elements of a domestic employment relationship are present.

The factual and legal requirements of an employment relationship are elements that must exist in the reality of the work relationship for it to be considered an employment relationship and thus be protected by labor regulations (DELGADO, 2018). In the case of domestic employment, there are eight requirements, four of them being the same as those of standard employment relationships - a natural person, personality, onerousness, and subordination⁵; a fifth element, related to the non-eventuality of the standard employment, albeit with different contours, which is continuity⁶; and three additional special elements: "the non-profit nature of the services; appropriation of the services solely by a natural person or family; and the performance of services in relation to the residential domain of the recipients" (DELGADO, 2018, p. 438).

Thus, we can observe that labor regulations do not create clear boundaries that exclude family care from their scope. On the other hand, these boundaries are produced in the discourse of judges in court decisions addressing this matter, as I will seek to present in the next section.

V Case analysis

After analyzing the nine filtered decisions⁷, it was found that in none of them was a domestic employment relationship recognized, neither at the trial court nor at the appellate level. Regarding the gender of the claimants (plaintiffs in the trial courts), it was observed that only one of them was male⁸. The judicial districts of origin of the cases were: Araxá, Itajubá, Belo Horizonte, Cataguazes (two occurrences), Divinópolis, Guanhães, Passos, and Uberaba; and the years in which the decisions were made available/published were: 2006, 2007 (two occurrences), 2008, 2017, 2019, 2021 (two occurrences), and 2022.

The types of kinship found were: cousin, niece, granddaughter (two occurrences), nephew's wife, daughter-in-law (two occurrences), partner, and in one case it was not possible to identify the type of kinship. It is interesting to note that women with closer kinship ties, such as daughters and wives, are those who most often care for dependent family members, and the absence of legal claims from these individuals may indicate that the duty of care is imposed upon them even more intensely, as an unpaid obligation.

In only two cases was it verified that the claimant did not live in the same house or on the same property as the person for whom they provided care - and in one of those, the claimant lived next door. In the other cases, the claimants resided either in the same house or on the same property as the person receiving care, and in all cases, the property belonged either to the person cared for or to other family members, revealing a situation in which the caregiver lived free of charge in a property belonging to others. This provision of free housing was interpreted in the rulings as a fact giving rise to a duty of care, within a logic of mutual aid exchanges within families.

Indeed, the body of evidence contained in the case file leaves no doubt that a familial and affective bond was established between the parties. The claimant performed a generous act by assisting her mother-in-law, in exchange for being welcomed into her residence, together with her children (emphasis added, Regional Labor Court of the 3rd Region; Case No.: 00088-2007-101-03-00-2 RO; Publication Date: 06/21/2007, DJMG, p. 17; Judging Body: Seventh Panel; Reporting Judge: Substitute Wilmeia da Costa Benevides; Reviewing Judge: Maria Perpetua Capanema F. de Melo).

Based on the body of evidence contained in the case file, it is observed that the fact that the claimant performed small domestic tasks for the respondent does not, exceptionally, reveal an employment relationship, but merely a familial relationship, among people who practically lived under the same roof, cohabited, and shared meals. Moreover, the assistential nature of the respondent’s behavior toward the claimant and her family was indisputable, as she granted them a shack on a loan for use for their residence (emphasis added, Regional Labor Court of the 3rd Region; Case No.: 00740-2006-041-03-00-9 ROPS; Publication Date: 09/15/2006; Judging Body: Second Panel; Reporting Judge: Jorge Berg de Mendonça).

Regarding the requirements of a employment relationship, considered absent in the cases adjudicated, the following were observed: absence of subordination (two occurrences); absence of subordination and onerousness (two occurrences); absence of subordination and personality (one occurrence); absence of onerousness (one occurrence); absence of all elements of the employment relationship (two occurrences).

Although the decisions mention the absence of the requirements for the employment relationship, it can be seen that the main point of the arguments is the demonstration that the work was performed within the context of a familial and affective relationship rather than an employment relationship, as if, in the judges’ understanding, it were not possible for an intimate/family relationship to also be an employment relationship in the context of care work. In this sense, many decisions acknowledge the legal possibility of the existence of employment relationships among family members and, subsequently, argue about the familial nature of the provision of services, in contrast to services rendered within the context of employment relationships.

It should be noted that the absence of subordination was the most cited argument in denying the existence of an employment relationship, understood in its classical terms as the lack of receipt of orders, the lack of pre-established work routines, and the lack of supervision. In this context, there is the case of a claimant who cared for his cousin, a person declared legally incapacitated for civil acts⁹; they lived together, and the cared-for person's brother, who lived in another city, managed his estate. It is interesting to note that this is the only case, among the analyzed cohabitation situations, in which no gratuitous housing for the caregiver was identified. The caregiving lasted ten years, and after the cared-for person's death, the claimant sought recognition of an employment relationship, alleging that he had been paid for the care services provided. The trial court judge recognized the provision of services and the existence of financial compensation but identified the absence of legal subordination due to the lack of orders and pre-defined routines from the defendant, as well as the existence of autonomy, since the claimant cared for the person in the manner he saw fit.

Based on the documents attached to the initial petition, it is possible to perceive, from the conversations between the claimant and his cousin (the respondent), that there was no situation of legal subordination of the former to the latter, but merely discussions related to routine care for Mr. [...], now deceased. In my view, there was a provision of services motivated by the familial bond between the parties, and not an employment relationship.

In this context, the claimant was not subject to orders or pre-established routines imposed by the respondent. He simply cared for his cousin in the manner he deemed appropriate and, from time to time, relayed clinical updates to the brother of [...], the respondent, who lived in another city. The claimant had broad autonomy in performing such care and was not bound by any commands from the respondent.

This reality is reflected in the emails exchanged between the parties, such as the one on page 27, in which the respondent requests information about the claimant’s new address and other financial information (income) of the brother under the claimant’s care, in order to arrange for the corresponding income tax filing. There are several messages of this nature, from which it is possible to observe that there was merely a conversation between the claimant and the respondent aimed at resolving routine matters involving Mr. [...], then under the claimant’s care (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0010288-87.2019.5.03.0048 (ROT); Publication: 03/10/2022; Judging Body: Eleventh Panel; Reporting Judge: Marco Antonio Paulinelli Carvalho).

It is possible to observe that the judges employed the classical notion of subordination, manifested through the receipt of orders, pre-established routines, and supervision, a notion constructed around factory labor in the early stages of capitalism. This notion has already been revisited by legal scholars attentive to changes in the world of work, who argue that workers' subordination now takes on more flexible forms, especially in the service sector, with control more oriented toward results.

When analyzing the concrete dynamics of caregiving, it becomes clear that although there may be, at some level, management and direction in caregiving tasks, daily work is more guided by the concrete circumstances and daily needs of the person receiving care than by prescriptions, as Pascale Molinier (2013) argues, highlighting a kind of autonomy of the worker, who masters the know-how of caregiving practices. Thus, just as the requirement of legal subordination has been rethought for new labor dynamics, it must also be rethought for the particularities of caregiving work, as something far beyond the mere receipt of orders. In this context, we could perceive legal subordination, in the aforementioned case, in the conversations to “resolve details involving Mr. [...]'s routine” or in the “discussions regarding the routine care of Mr. [...]”, as these conversations reveal a form of management/direction of caregiving tasks.

Legal subordination was the subject of debate in an interesting appellate decision where a dissenting opinion was recorded, identifying the presence of all elements of a domestic employment relationship¹⁰. The case involves a granddaughter who filed a labor claim seeking the recognition of a domestic employment relationship based on the care she provided to her grandfather. The judge responsible for the dissenting opinion argues for the presence of subordination in the provision of services:

Even if in a veiled manner and in the form of objective subordination, it is possible to observe the presence of subordination also with respect to the control of the claimant’s working hours. It should be noted that for the claimant to attend Saturday classes, she had to notify the respondent in advance, given that the respondent would plan her day ahead of time.

Even though, in her personal testimony (8 minutes and 24 seconds), the respondent stated that it was not necessary for the claimant to inform her when she was leaving the house, the screenshot demonstrates the opposite.

There was a demand for performance and care of the elderly in the household (screenshot on p. 32), where not only was better performance in her activities demanded, but there was also a threat to replace her with a more qualified professional, since her grandfather was paying her a SALARY. Obviously, this is an employment relationship, as an employee can be dismissed, but a granddaughter never could (Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

Moving on to another requirement of the employment relationship, onerousness, it is observed that in the majority of cases the claimants allege having received compensation for the care provided, and this fact is often acknowledged by the judges themselves, who, nevertheless, do not consider the payment as the source of the duty to provide care. "Although it was proven that the claimant cared for his cousin, he did so not because he was bound to the respondent as an employee, but certainly because of the familial bond between them and also because he received some amount in return" (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0010288-87.2019.5.03.0048 (ROT); Publication: 03/10/2022; Judging Body: Eleventh Panel; Reporting Judge: Marco Antonio Paulinelli Carvalho).

In another case, the judges also recognize the payment for the work performed, but without further reflection on the matter, they point to the existence of kinship as incompatible with the recognition of an employment relationship: "Thus, although the claimant received payment for the hours spent on these tasks, the provision of services was rendered due to kinship and the affective bond, which is incompatible with legal subordination" (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0011297-77.2016.5.03.0052 (ROT); Publication: 02/08/2017; Judging Body: Fourth Panel; Reporting Judge: Maria Lucia Cardoso Magalhães).

Onerousness was also discussed in the aforementioned dissenting vote, in which it was argued that the claimant received remuneration for the care provided: minimum wage, a thirteenth salary; and even signed receipts for these payments, documentation that was produced the rendering of accounts to the court concerning the guardianship of her grandfather’s assets, which was managed by her aunt/daughter of the cared-for person, one of the defendants in the labor lawsuit.

The claimant is identified as a caregiver for the elderly in the payment receipts. Although the profession has not yet been regulated in Brazil, it falls within the possible functions and activities of domestic work.

The receipts were obtained from the electronic case file of the rendering of accounts proceedings [...]. Ms. [name] herself, through her attorney in the rendering of accounts proceedings, DECLARED that there was a legal bond of an employment relationship between Mr. [...], mediated by his guardian.

The evidence arising from a judicial proceeding, constituted by the respondent herself, is conclusive proof of the onerousness, which is a factual and legal element of the employment relationship. It is not a mere allowance, data vênia. It is, indeed, compensation for the labor performed. (Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

Although it was clear to the judges that the claimant was remunerated for the care provided, these amounts were referred to as financial aid and not as remuneration or salary, which are the expressions used in labor law to refer to compensation for work.

On another note, the testimony of the first respondent, the claimant’s aunt, clarified that the family unit - composed of the grandparents, mother, uncles, and the claimant’s son - resided together in two houses located on the same plot of land, with joint care being provided for the grandfather’s health, although the claimant bore the greater share of responsibility, for which she received financial assistance from the family [...]. (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

In this sense, the judges understood that there was a kind of exchange of assistance, while the granddaughter helped care for her grandfather, the family helped her with financial support: "In fact, the evidence indicates that what existed between the parties was a bond of an effectively familial relationship, with the claimant being responsible, in exchange for financial assistance and housing provided by the family, for assisting, as a family member, in the care of her own grandfather." (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

It can be seen that naming care work as assistance, and its compensation as help, reveals the non-recognition of family care as dignified work deserving of the economic and legal repercussions recognized for other forms of labor in society. Along these lines, care was also referred to as assistential provision in another ruling: "Thus, the services that the claimant claims to have performed are, in sum, the result of the familial/affective relationship between the parties, where there was only an assistential provision." (Regional Labor Court of the 3rd Region; Case No.: 01149-2007-057-03-00-5 ROPS; Publication Date: 01/30/2008; Judging Body: Second Panel; Reporting Judge: Jorge Berg de Mendonça).

Another form of assistance offered by the family to the claimant, recognized by the judges in the case of the granddaughter who cared for her grandfather, was free housing, which she, her son, and her mother enjoyed. Moreover, not only did the claimant live free of charge, but she also held parties at the property, a fact presented as an indication that she was part of a familial relationship through which she had advantages, one of them being the freedom to host events. In this context, caring for her grandfather, considering the familial advantages she enjoyed, became a duty of moral solidarity, for the judges.

In this case, I understand that the oral evidence indicates that there was no effective employment relationship between the parties, considering the testimonies collected, including the statements made by the claimant herself.

Indeed, in her testimony, the claimant confirmed that the work performed involved caring for her grandfather, with whom she lived free of charge together with her mother and son, in a property where she held parties and continues to use to this day, even renting out rooms to third parties. (Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

It is interesting to note that the labeling of remuneration as assistance is challenged by the judge responsible for the dissenting vote:

Assistance within the family circle is something genuinely expected and occurs frequently; however, payment for assistance brings the consideration that if something is being paid for, it is because it would otherwise be paid to someone else, to a third party, often at a much higher cost, and because it occurs within the family, it is understood that such payment would also be a “help” to the recipient. No, there is no help. There is payment. Help is help.

Caring for an elderly person is a profession, increasingly necessary and well remunerated, given the numerous demands and affections involved. To say that one is helping a niece is, data vênia, in reality, discriminating against the work performed by a young woman because she is a granddaughter, has a child, and needs a place to live. As a granddaughter, she could have been helped with support at home, food, and shelter, as many do, without requiring her to perform caregiving work for her grandfather and remunerated for it, no less. (emphasis added, Regional Labor Court of the 3rd Region; PJe: 0011023-22.2019.5.03.0113 (ROT); Publication: 09/20/2021; Judging Body: First Panel; Reporting Judge: Emerson Jose Alves Lage).

Regarding the issue of free housing, the judge further argues that it is common in Brazil for domestic workers to live with their employers, and that this fact does not remove the employment character of the relationship. It is worth adding that having a personal and affective relationship with employers, especially when living with them, is very common in domestic work in general, even when there is no kinship relationship. In this context, a common discourse surrounding domestic work - one that masks relations of exploitation - is the claim that domestic workers are almost like family (TEIXEIRA et al., 2015). If being almost family carries the trait of servitude, being actual family does not eliminate it - it merely removes the possibility of recognizing a domestic employment relationship under Brazilian labor law.

Regarding continuity, the dissenting vote highlights excerpts in which witnesses state that the claimant cared for her grandfather daily and that she worked without days off, including weekends. Regarding personality, it is argued that various caregiving tasks were performed solely by the granddaughter, who did not even receive assistance from other family members. It was also identified that the work was performed by a natural person and provided for the benefit of a person-family unit, with non-profit purposes, within the residential domain of the beneficiaries, thereby meeting all the elements of a domestic employment relationship in accordance with Complementary Law No. 150.

Finally, it is interesting to observe that the judge, in the dissenting vote, cites leading authors in gender and care studies, bringing forward ideas such as the sexual division of labor to argue that the non-recognition of the employment bond in this case reaffirms the invisibility of caregiving, associating it with a female family duty.

Caregiving also appears, in the view of the judges, as a familial (and female) obligation in another ruling, this time arising from the function of housewife.

Indeed, it is natural that one who benefits from sustenance and shelter, as a member of the family, should contribute to the performance of family tasks according to their abilities. In this context, the claimant’s conduct is further justified, as it was incumbent upon her, as the true owner of the house, to perform domestic tasks for the benefit of the entire family, including her husband and children, as well as to assist in the care of her mother-in-law, tasks which do not fall within the legal parameters for the characterization of an employment relationship. (emphasis added, Regional Labor Court of the 3rd Region; Case No.: 00088-2007-101-03-00-2 RO; Publication Date: 06/21/2007, DJMG, p. 17; Judging Body: Seventh Panel; Reporting Judge: Substitute Wilmeia da Costa Benevides; Reviewing Judge: Maria Perpetua Capanema F. de Melo).

Another noteworthy case is that of a niece who filed a lawsuit claiming that she had been a domestic worker and caregiver for an elderly couple - her aunt and uncle - between 2016 and 2019, both now deceased¹¹. It is interesting to note that, at the trial court level, two witnesses and one of the respondents admitted to the continuous provision of services, against one witness who stated that she had not seen the claimant at the couple’s house during the few visits she made. Nevertheless, the trial judge found that the witnesses and the respondent sought to benefit the claimant, and ultimately interpreted that the niece’s activities were occasional, thereby finding the absence of the continuity requirement for the characterization of a domestic employment relationship.

In this decision, certain arguments stand out due to their moral judgement dimension. The first is linked to the understanding that the labor claim was actually a strategy by the claimant to gain access to her uncles’ estate, which had no direct heirs. This view raises the hypothesis that claims seeking recognition of employment bonds in the context of family caregiving are regarded by judges as opportunistic maneuvers, since they would corrupt the ideal of caregiving as a gratuitous and selfless act - caregiving motivated by love.

What is perceived from the case record is that the claimant’s intention was to keep the house owned by her deceased uncles, who left no direct heirs, thus constituting a dispute over the inheritance left by Mr. [...], rather than a claim for the recognition of an employment relationship." (Regional Labor Court of the 3rd Region; PJe: 0010483-96.2020.5.03.0061 (ROT); Publication: 11/11/2021; Judging Body: Sixth Panel; Reporting Judge: Substitute Paulo Emilio Vilhena da Silva).

The second notable argument in this decision, raised by the trial judge and reiterated by the appellate judge, was the skepticism about the factual possibility that the claimant could simultaneously care for her elderly uncle and her own children, aged six and ten, as well as her mother, who had health problems, even though she lived next to her uncle’s house, which reveals the judges’ lack of understanding regarding the long and exhausting workdays faced by family and hired caregivers in Brazil¹².

"[...] I concur with the trial court’s view that it is neither credible nor reasonable to believe that the claimant, in addition to caring for her own mother (elderly and with health problems) and her children, would still have availability to work at her deceased uncle’s house from Sunday to Sunday, including holidays, from 8 a.m. to 6 p.m., with a break from noon to 3 p.m." (Regional Labor Court of the 3rd Region; PJe: 0010483-96.2020.5.03.0061 (ROT); Publication: 11/11/2021; Judging Body: Sixth Panel; Reporting Judge: Substitute Paulo Emilio Vilhena da Silva).

The third argument I highlight, also of a moral nature - although not endorsed by the appellate decision, nor explicitly rejected - is that if the claimant were truly a caregiver, she would have accompanied her uncle to the bank on the day he fell ill and subsequently passed away.

[...] if the claimant were Mr. [...]’s caregiver, working from Sunday to Sunday as alleged in her initial petition, she would certainly have been accompanying him on the day he fell ill - and she was not - which leads to the conclusion that she was merely an aide to Mr. [...], due to the familial ties. (Regional Labor Court of the 3rd Region; PJe: 0010483-96.2020.5.03.0061 (ROT); Publication: 11/11/2021; Judging Body: Sixth Panel; Reporting Judge: Substitute Paulo Emilio Vilhena da Silva).

Finally, I highlight one last case, involving a daughter-in-law who cared for her father-in-law and sought recognition of a domestic employment relationship¹³. In a particularly interesting excerpt from the decision, which summarizes the core of the claimant’s appeal, it is reported that the daughter-in-law argued she had no obligation to care for her father-in-law and did so only because remuneration had been promised to her, in addition to the fact that there was no one else available to care for him: “She alleges, in summary, that she had no obligation to care for her father-in-law and did so only because he promised her remuneration for the efforts made and because there was no one else to care for him, leaving her with no other option." (Regional Labor Court of the 3rd Region; Case No.: 01149-2007-057-03-00-5 ROPS; Publication Date: 01/30/2008; Judging Body: Second Panel; Reporting Judge: Jorge Berg de Mendonça).

VI Conclusion

Based on the jurisprudential analysis presented, it can be concluded that the mere existence of a family relationship, in the judges’ view, precludes the recognition of an employment relationship, since the management of care by a family member is not seen as subordination; the compensation for caregiving is not seen as remuneration; and caregiving is not seen as labor, but rather as assistance, as an assistential provision, and as a family duty of reciprocity/solidarity.

Thus, using the analytical tools proposed by Viviana Zelizer (2011), it can be concluded that judges, in decisions regarding claims for the recognition of a domestic employment relationship based on caregiving services rendered within family relationships, in the jurisdiction of the Regional Labor Court of the Third Region (TRT-3), engage in the task of boundaries reaffirmation between family relationships - intimate, affective, derived from kinship ties and embedded in the logic of the duty of solidarity - and employment relationships, those economic in nature, derived from the employment contract and subject to the attribution of labor rights. This rigid separation, as previously argued, carries a moral judgment that the economic would contaminate the intimate, rendering relationships superficial and calculating, which does not hold given that in everyday life, intimate relationships are permeated by economic dimensions, just as economic relationships, especially when it comes to caregiving, are also permeated by intimacy (ZELIZER, 2011).

References

• CONAGHAN, Joanne. Work, Family and the Discipline of Labour Law. In: CONAGHAN, Joanne; RITTICH, Kerry. Labour law, work and Family. Oxford University Press, 2005. pp. 19-42.
• DELGADO, Maurício Godinho. Curso de Direito do Trabalho. 17. ed. São Paulo: LTr, 2018.
• FOUGEYROLLAS-SCHWEBEL, Dominique. Trabalho doméstico. In: HIRATA, Helena et al. (Orgs.). Dicionário crítico do feminismo. São Paulo: Editora Unesp, 2009. p. 257-262.
• FRASER, Nancy. Contradictions of capital and care. New Left Review, Londres, v. 100, p. 99-117, jul./ago. 2016.
• FRASER, Nancy. O feminismo, o capitalismo e a astúcia da história. Mediações, Londrina, v. 14, n. 2, jul./dez. 2009.
• FUDGE, Judy. From women and labour law to putting gender and law to work. In: DAVIES, Margaret; Munro, Vanessa E (Eds.). The Ashgate Research Companion to Feminist Legal Theory. Routledge, 2016. p. 333-352.
• GROISMAN, Daniel; et al. Cuida-Covid: Pesquisa nacional sobre as condições de trabalho e saúde das pessoas cuidadoras de idosos na pandemia - Principais resultados. Rio de Janeiro: EPSJV/ICICT/Fiocruz, 2021.
• GUIMARÃES, Nadya Araujo. Os circuitos do cuidado: reflexões a partir do caso brasileiro. 2019. Trabalho apresentado no 2019 Congress of the Latin American Studies Association (LASA), Boston. 2019.
• HAICAULT, Monique. La gestion ordinaire de la vie en deux. Sociologie du travail, Paris, v. 26, n. 3, 1984. p. 268-277,
• HIRATA, Helena; BORGEAUD-GARCIANDÍA, Natacha. Tato e tabu: A sexualidade e as emoções no trabalho de cuidado. In: GUIMARÃES, Nadya Araújo; HIRATA, Helena Sumiko. O gênero do cuidado: desigualdades, significações e identidades. Cotia, SP: Ateliê Editorial. 2020.
• HIRATA, Helena; KERGOAT, Danièle. Novas configurações da divisão sexual do trabalho. Cadernos de pesquisa, v. 37, 2007. pp. 595-609,
• HOCHSCHILD, Arlie R. The Culture of Politics: Traditional, Postmodern, Cold-modern, and Warm-modern Ideals of Care. Social Politics, Oxford, v. 2, n. 3, 1995. p. 331-346.
• KERGOAT, Danièle. Divisão sexual do trabalho e relações sociais de sexo. In: HIRATA, Helena et al. (Orgs.). Dicionário crítico do feminismo. São Paulo: Editora UNESP, 2009. p. 257-262.
• KERGOAT, Danièle. O cuidado e a imbricação das relações sociais. In: ABREU, Alice Rangel de Paiva Abreu; et al. (Orgs.). Gênero e Trabalho no Brasil e na França: perspectivas interseccionais. São Paulo: Boitempo, 2016.
• MOLINIER, Pascale. Le travail du care. Paris: La dispute, 2013.
• MEDEIROS, Marcelo; PINHEIRO, Luana. Desigualdades de gênero em tempo de trabalho pago e não-pago no Brasil, 2013. Sociedade e Estado. Brasília, 33(1), 2018. p. 161-187
• OROZCO, Amaia. Ameaça Tormenta: a crise dos cuidados e a reorganização do sistema econômico. In: FARIA, Nalu; MORENO, Renata (Orgs.). Análises feministas: outro olhar sobre a economia e a ecologia. São Paulo: Sempreviva Organização Feminista, 2012.
• PATEMAN, Carole. O contrato Sexual. Rio de Janeiro: Paz e Terra, 1993.
• PINHEIRO, Luana Simões. Determinantes da alocação de tempo de trabalho reprodutivo: uma revisão sobre os achados em pesquisas nacionais e internacionais. In: Natalia Fontoura; Clara Araujo (Eds.) Uso do Tempo e Gênero. Rio de Janeiro: UERJ, 2016. p. 61-100.
• SCOTT, Joan. Gender as a useful category of historical analysis. In: Culture, society and sexuality. Routledge, 2007. p. 77-97.
• TEIXEIRA, Juliana Cristina; et al. Os lugares das empregadas domésticas. Organizações & Sociedade, v. 22, 2015. p. 161-178.
• TRONTO, Joan. Un monde vulnérable: pour une politique du care. Paris: La découverte, 2009.
• ZELIZER, Viviana. Encontros de intimidade e economia. In: ZELIZER, Viviana. A Negociação da Intimidade. Petrópolis: Ed. Vozes, cap. 1, 2011. p. 17-48.

• Funding information
  This research was funded by FAPEMIG - Fundação de Amparo à Pesquisa do Estado de Minas Gerais.
• Data Availability Statement
  The data supporting the findings of this study are available within the article.
• 1
  The three aforementioned decisions refer to ordinary appeals: 0153500-69.2009.5.03.0129; 00063-2004-082-03-00-2; 5399/01.
• 2
  The case numbers analyzed, all of which are ordinary appeals, are: 0010288-87.2019.5.03.0048; 0010483-96.2020.5.03.0061; 0011023-22.2019.5.03.0113; 0010886-29.2019.5.03.0052; 0011297-77.2016.5.03.0052; 01149-2007-057-03-00-5; 00732-2006-090-03-00-2; 00088-2007-101-03-00-2; 00740-2006-041-03-00-9.
• 3
  The same applies to standard employment: there is no impediment to the existence of an employment relationship among family members. Even between spouses, it is possible to recognize the existence of a standard employment relationship.
• 4
  Case n. 00088-2007-101-03-00-2 RO.
• 5
  Natural person refers to the fact that the domestic employment relationship can only be established with a natural person, and not, for example, with a legal entity; personality establishes that the services must be rendered personally, without the intermittent substitution of the worker by another (DELGADO, 2018, pp. 338-340). Onerousness, in turn, establishes that, in order for the domestic employment relationship to be characterized, there must be the receipt of economic compensation — the salary — for the work performed, or at least the worker’s intention to receive it (DELGADO, 2018, pp. 337-348). Subordination refers to the fact that the worker submits to the employer’s direction in the manner in which the work is carried out, which may be materialized, for example, through the receipt of orders (DELGADO, 2018, p. 349).
• 6
  Non-eventuality in the case of standard employment encompasses many meanings, established by labor law doctrine through various theories developed to understand the phenomenon. Among these meanings is that non-eventual work is work that has a certain regularity, not work that is demanded due to a specific event or performed sporadically (DELGADO, 2018). It is important to note that one of the theories constructed by the doctrine — the theory of discontinuity — is not embraced by the CLT for standard employment; it establishes that occasional work is that which is fragmented over time, “with interruptions and temporal gaps” (DELGADO, 2018, pp. 340-343). This less prestigious and less protective theory was precisely the one most adopted by the doctrine and jurisprudence to define regularity in domestic employment. With Complementary Law No. 150, this theory moved from a mere doctrinal construction to a codified rule, by establishing that domestic employment is only characterized when work is performed more than twice a week for the same employer, which constitutes discrimination against this form of labor.
• 7
  The case numbers analyzed, all of which are ordinary appeals, are: 0010288-87.2019.5.03.0048; 0010483-96.2020.5.03.0061; 0011023-22.2019.5.03.0113; 0010886-29.2019.5.03.0052; 0011297-77.2016.5.03.0052; 01149-2007-057-03-00-5; 00732-2006-090-03-00-2; 00088-2007-101-03-00-2; 00740-2006-041-03-00-9.
• 8
  It is important to note that the gender analysis was conducted based on the name of the individual recorded in the case file and on the pronouns used to refer to them in the content of the decision.
• 9
  Case nº 0010288-87.2019.5.03.0048.
• 10
  Case 0011023-22.2019.5.03.0113.
• 11
  Case nº 0010483-96.2020.5.03.0061 (ROT).
• 12
  Regarding the subject, see the Cuida Covid Report, produced by the Oswaldo Cruz Foundation, on the working conditions of family and non-family caregivers during the COVID-19 pandemic (GROISMAN et al., 2021).
• 13
  Case n. 01149-2007-057-03-00-5.

Edited by

• Editors Responsible for the Evaluation Process and Editing
  Carolina Alves Vestena and Bruna Bataglia.

Data availability

The data supporting the findings of this study are available within the article.

Publication Dates

• Publication in this collection
  03 Oct 2025
• Date of issue
  Jul-Sep 2025

History

• Received
  09 Dec 2024
• Accepted
  01 Feb 2025