Outsourcing and B2B contracts: requirements and risks of hiring PJs (Legal Entities)

To hire PJ (Pessoa Jurídica - Legal Entity) service providers or outsourcing companies based on the current legal framework, it is fundamental to distinguish autonomous service provision from an employment relationship. Law 6.019/1974, with amendments from Law 13.429/2017 and Law 13.467/2017, allows outsourcing in core activities (atividade-fim), but the factual presence of subordination, regularity (habitualidade), compensation (onerosidade), and personality (pessoalidade) may result in the recognition of an employment relationship under the CLT (Consolidação das Leis do Trabalho - Consolidation of Labor Laws), generating labor and tax liabilities. Warning: this article is for informational purposes only and does not constitute individualized legal or accounting advice.

The outsourcing scenario and Law 6.019/1974

Outsourcing in Brazil is governed by Law 6.019/1974. Although the legislation allows companies to hire others to perform any of their activities, including the main activity (core activity), this permission does not constitute universal legality for any and all forms of 'pejotização' (the practice of hiring individuals as legal entities to avoid labor costs). The legal validity of B2B hiring depends on the real existence of autonomy in the provision of services and the absence of the requirements characterizing an employment relationship provided for in Articles 2 and 3 of the CLT.

The legislation requires the service-providing company to have economic capacity compatible with the execution of the contract. According to Article 4-B of Law 6.019, service-providing companies must have a minimum share capital scaled according to the number of employees: companies with up to 10 employees must have a minimum capital of R$ 10,000.00; between 11 and 20 employees, R$ 25,000.00; between 21 and 50 employees, R$ 45,000.00; between 51 and 100 employees, R$ 100,000.00; and above 100 employees, the minimum capital must be R$ 250,000.00. Non-compliance with these formal requirements can weaken the legal security of the operation.

Re-hiring restrictions and the 18-month quarantine

A critical point of attention in B2B contract management refers to the time restrictions imposed by Law 13.467/2017. Article 5-C of Law 6.019 prohibits a company from using, as a service provider, an employee who has been dismissed within the last 18 months. This restriction applies both to the professional who provides services as a natural person (in specific cases) and to the partner of the hired company whose services will be provided to the contracting party in the capacity of an employee or worker without a formal link.

It is essential to note that this 18-month 'quarantine' is not a universal restriction for every B2B relationship, but a specific prohibition for the figure of the former employee who returns as a service provider to the same employer under conditions that simulate the previous relationship. If your company seeks Corporate legal security: tax governance, contracts and labor, monitoring these deadlines is vital to avoid the nullity of the contract before labor inspections.

The primacy of reality and the risks of an employment relationship

In Brazilian Labor Law, the principle of the primacy of reality over form prevails. This means that the existence of a written B2B service contract, duly signed and with invoices issued, does not, in itself, prevent the recognition of an employment relationship if the factual reality demonstrates the presence of employment relationship elements. The contract alone does not prevent the link; it must reflect the daily practice of autonomy.

The elements that, if cumulatively present in relation to a natural person, mischaracterize the B2B relationship and indicate a CLT link are:

1. Subordination: The contracting party's power of direction over the form, time, and manner of execution of the tasks of the allocated professional.
2. Regularity (Habitualidade): Non-occasional service provision, integrated into the company's organic routine.
3. Compensation (Onerosidade): Direct or indirect financial consideration for the service.
4. Personality (Pessoalidade): The impossibility of the professional being replaced by another professional from the providing company, showing that the hiring specifically targeted that natural person and not the legal company's service.

The absence of technical and administrative autonomy of the service provider is the main risk factor. To understand the cost implications of direct hiring, consult the guide on Labor laws in Brazil: how to hire employees with compliance.

Subsidiary liability of the service user

In outsourcing, the contracting company (user) is not exempt from risks regarding the labor obligations of the hired company (provider). According to Article 5-A, § 5 of Law 6.019, the contracting company is subsidiarily liable for the labor obligations relating to the period in which the service provision occurs, as well as for the collection of social security contributions.

This implies that, if the provider company fails to meet its legal obligations, such as payment of salaries, FGTS (Fundo de Garantia do Tempo de Serviço - Severance Indemnity Fund) and severance pay, the worker can seek payment directly from the contracting company after exhausting attempts against the direct employer. For this reason, it is essential to implement monthly document audit processes, requiring the provider to submit proof of tax and social security regularity. In strategies involving Payroll in Simples Nacional: CPP, Annex IV and Factor R without shortcuts, the correct management of third parties is essential for cash flow balance and tax compliance.

Criteria for drafting the B2B contract

To minimize mischaracterization risks, the contract between the companies must be detailed and specific. The object of the contract must describe the delivery or technical service to be performed, and not the mere provision of labor for an indefinite period. It is recommended that service management be done through interlocutors (prepostos) of the providing company, avoiding the contracting party's managers giving direct orders to the hired party's employees.

Inspection focuses on organizational independence. If the service-providing company does not have its own equipment, does not exercise disciplinary power over its employees, and acts merely as a labor intermediary for the daily and subordinate activities of the contracting party, the structure is liable to questioning from the perspective of irregular 'pejotização'.

Frequently Asked Questions

Is the outsourcing of the core activity (atividade-fim) permitted without restrictions?

Yes, current legislation allows the outsourcing of any company activity. However, the legal permission for core activities does not nullify CLT requirements. If there is direct subordination and personality with the user, the link can be judicially recognized.

What happens if the provider company does not pay social charges?

The contracting company may be sued to settle these debts due to the subsidiary liability provided for in Law 6.019. It is recommended to withhold payments or terminate the contract in case of proven documentary delinquency.

How should autonomy be demonstrated in practice?

Autonomy is demonstrated when the providing company defines how the work will be performed, uses its own methods and tools, and has the power to replace its professionals, focusing on the contracted result and not on the availability of the natural person.

Next steps

To optimize cost structure and legal security, analyze the alignment between tax regimes in what is the difference between Lucro Real and Lucro Presumido. If your company is reviewing third-party hiring policies, consider the impacts of recent regulatory changes. For technical consulting on drafting service provision contracts, get in contact.

To advance in the decision, continue through the sequence of topics:

• Corporate legal security: tax governance, contracts and labor
• Labor laws in Brazil: how to hire employees with compliance
• Payroll in Simples Nacional: CPP, Annex IV and Factor R without shortcuts

See all articles or talk about your operation.

Official sources

• Law 6.019/1974
• CLT