By Taylor Adriano Chaves
A labor lawsuit concerning a PJ (legal entity) contract, which had been frozen since April 2025, resumed processing in June. The evidentiary hearing was rescheduled. Evidence will now be presented.
And the binding thesis that will define the standard does not yet exist.
Those responsible for service contracts with legal entities are facing an unusual dilemma: producing evidence today, under criteria that will be established later.
General Repercussion Theme 1.389 uses ARE 1.532.603 as a paradigm, under the rapporteurship of Minister Gilmar Mendes. It brings together three controversies: the competence of the Labor Court to judge cases concerning fraud in civil service contracts, the legality of hiring self-employed workers or legal entities in light of what was decided in ADPF 324, and the distribution of the burden of proof regarding allegations of fraud. "Pejotização," as defined by the Supreme Court itself, is the hiring of a worker through a legal entity created to provide the service.
Where does the yardstick that the Supreme Court will use come from?
The controversy didn't begin in 2025. It's the third chapter in a story that the Supreme Court itself started.
In ADPF 324, the court declared the outsourcing of both core and support activities lawful. In Topic 725, judged in RE 958.252, it went further and admitted any form of division of labor between distinct legal entities.
The Labor Courts continued to recognize employment relationships in specific cases, based on an analysis of the requirements of Article 3 of the CLT (Consolidation of Labor Laws). The Supreme Court began receiving an increasing number of complaints against these decisions.
It was this accumulation that motivated the national suspension in April 2025. The rapporteur noted that the high number of complaints demonstrated the need to standardize the understanding, given decisions that failed to apply established jurisprudence.
Topic 1.389, therefore, does not ask whether outsourcing is lawful. It asks where the legitimate division of labor ends and fraud begins, and who proves what at that boundary.
What did the June decision allow, and what remains blocked?
On June 17, 2026, in the proceedings of ARE 1.532.603, the rapporteur partially lifted the national suspension that had been in effect since April 2025. The Supreme Federal Court (STF) released its decision the following day.
Labor courts and regional tribunals have resumed hearings and trials. The argument presented by the minister was the significant backlog in the delivery of justice caused by the widespread strike.
The headline stopped there, and the detail that was left out matters more than the title. The release is not complete: once the proceedings in the Regional Labor Court (TRT) are concluded, the case is suspended again and remains so until the final ruling. In the Superior Labor Court (TST), the suspension was never lifted.
What has been unlocked, therefore, is the probationary phase and the double degree. The path to the higher court remains closed.
The scope of the topic explains the size of the problem. The model of hiring through a legal entity is common in commercial representation, real estate brokerage, associated law firms, healthcare, arts, information technology, and delivery services.
For the company, the effect is immediate and measurable. Liabilities that were previously dormant have started consuming provisions, fees, and hearing schedules again, without a merit-based assessment having been defined.
The burden of proof is the factor that changes the price of risk.
Of the three controversies, this is the one that displaces the most value.
In labor court cases, when a plaintiff alleges an employment relationship, the burden of proof lies with the contracting company to demonstrate the legality of the arrangement. This logic stems from the protective presumption that structures the field.
If the Supreme Court redistributes this burden, the entire economics of litigation changes. The success rate of marginal claims falls, the settlement calculation changes, and the amount that the audit mandates to be provisioned changes.
The practical effect appears before the sentence, at the negotiating table. A large part of labor agreements are priced based on the probability that the company will not be able to discharge the burden, and this probability is today the most sensitive variable in the calculation.
Jurisdiction operates in the same direction. Transferring cases concerning fraud in civil contracts to the ordinary courts alters not only the court's jurisdiction but also the evidentiary culture applied to the case.
There is also an expectation, noted in specialized coverage, that the court will establish differentiated criteria according to the provider's profile, considering the degree of autonomy, level of education, and actual negotiating capacity. If this is confirmed, the same contract will receive different treatment depending on who is on the other side.
The case law regarding complaints already points in a certain direction.
Until the merits of the case are decided, the Court's behavior in constitutional complaints serves as a barometer.
A survey by the law firm Eduardo Ferrão Advogados Associados, published in the legal press, counts 408 decisions by the Supreme Federal Court (STF) between 2021 and 2026 recognizing the jurisdiction of the Common Courts in claims regarding the use of independent contractors, with decisions from eight of the ten ministers who currently make up the court.
The concentration is significant. Gilmar Mendes is responsible for 141 of these decisions, André Mendonça for 87, Dias Toffoli for 44, and... Alexandre de Moraes received 39 votes, equivalent to 76% of the total.
The timeline also tells us something. There were 23 decisions in 2021 and 2022 combined, 106 in 2023, 180 in 2024, and 98 in 2025, the latter number achieved even with the national lockdown in effect.
None of this anticipates the thesis. It indicates, however, that the hypothesis of an outcome entirely favorable to the traditional interpretation of Labor Law is not the most likely, and contingency planning works with probability, not preference.
Not every process involving a PJ contract is Topic 1.389
This is the most costly framing error at the moment, and the Supreme Court has already corrected it in a specific case.
A construction company filed a constitutional complaint against the judge of the Labor Court of Águas Lindas de Goiás, who had denied the suspension of a lawsuit regarding the recognition of an employment relationship. The company argued that the national suspension order had been violated.
The judge noted that the case did not fit the established theme, as it involved a worker earning close to the minimum wage, hired as an individual, without any mention of "pejotização" (a practice of hiring workers as independent contractors to avoid labor laws). He further observed that, if the stay of proceedings were applied broadly, half of the court's cases could be halted.
Gilmar Mendes upheld the judge's decision. Topic 1.389 deals with fraud in civil service contracts, the legality of hiring freelancers or legal entities, and the burden of proof in these cases; verifying the requirements for an employment relationship between a natural person and a company does not fall under this scope.
The practical lesson is straightforward. Requesting a suspension in a process that is not about "pejotização" (a Brazilian term referring to the practice of hiring individuals as independent contractors to avoid labor laws) undermines credibility and delays the defense that matters.
What to review in PJ contracts while awaiting the thesis.
The future standard is uncertain, but the elements that any criterion will examine are already known, and all depend on documentary evidence produced before the litigation.
Real autonomy in execution. Who defines the schedule, method, and sequence of deliverables? A communication log that imposes a command schedule and routine is the first document that appears in the instructions.
Structure of the contracted legal entity. Does it have compatible activity in its corporate purpose, does it invoice other clients, does it have its own structure? A legal entity formed in the week of contracting and with a single client is a fact, not an interpretation.
Pricing structure. A fixed monthly remuneration that remains the same over several years, with adjustments based on collective bargaining agreements, tells a different story than a contract with a price per delivery and documented negotiation.
Approval and filing process. Proposals, counter-proposals, invoices, and exchanges regarding scope form the basis of the defense when the hearing arrives, and this is what the June release brought forward in the calendar.
Exclusivity and integration into the structure. A service provider with a badge, corporate email, the same goals as the salaried team, and an informal prohibition on serving competitors carries the classic elements of subordination, even if the contract says otherwise. What matters in instruction is the routine, not the clause.
It is also worth mapping exposure by profile. If the Supreme Court differentiates by degree of autonomy and negotiating capacity, the risk is not distributed equally between a senior consulting partner and a service provider who performs standardized tasks under a routine defined by the client.
Finally, it's worth distinguishing between revision and mere pretense. Changing the contract's name, rewriting the autonomy clause, and keeping the routine intact produces a document that the judiciary can dismantle in the presence of two witnesses. The revision that endures is the one that changes the practice, not just the written document.
What is still undecided
The merits of the case remain pending. The trial began in the Virtual Plenary in November 2025 and has been suspended since December at the request of a judge, with no date set for resumption as of the writing of this text.
There is a less discussed but more financially impactful front. The rapporteur has already suspended the execution in a case that has reached a final judgment, understanding that the controversy surrounding Topic 1.389 extends to the execution phase, which reopens discussion about liabilities that companies considered closed.
The institutional dispute also remains alive. Anamatra requested to participate as amicus curiae, and the Attorney General's Office expressed its support for hiring professionals as legal entities, which gives an idea of the distance between the positions.
There is also the issue of modulation. A thesis that alters jurisdiction or the burden of proof will need to specify what happens to ongoing proceedings, to agreements already approved, and to executions in progress, and it is in this adjustment that it is decided whether the effect will be prospective or retroactive.
Meanwhile, the system's foundation remains operational. The courts have resumed producing evidence under the current criteria, and this evidence will later be judged under the criteria established by the Supreme Court.
Why employment contracts and labor liabilities are no longer separate issues.
The discussion about "pejotização" (the practice of hiring workers as independent contractors to avoid labor laws) has ceased to be a matter of labor litigation and has become an issue of contract structuring and corporate risk management.
Whoever drafts a service agreement without anticipating the evidentiary phase hands the opposing party the evidence they would need to produce. Whoever defends without understanding the corporate structure of the arrangement loses the argument at the point where it is winnable.
The Postgraduate Program in Private and Business Law at IDP focuses precisely on this connection. The second axis of the course brings together corporate law, business contracts, taxation, judicial reorganization, and business work, with a focus on advising companies and structuring operations.
The course features live classes held every two weeks, and among the instructors are Paulo Dias de Moura Ribeiro, a minister of the Superior Court of Justice, Nelson Rosenvald, who holds postdoctoral degrees in Civil Law and Corporate Law from the University of Coimbra, and Lucinéia Possar, legal director of Banco do Brasil.
Learn about the Postgraduate Program in Private and Business Law: https://pos.idp.edu.br/products/pos-graduacao-em-advocacia-em-direito-privado-e-empresarial
References
Official page for Topic 1.389 on the STF (Supreme Federal Court) website, outlining the three controversies and the reporting of Gilmar Mendes: https://portal.stf.jus.br/jurisprudenciaRepercussao/verAndamentoProcesso.asp?incidente=7138684&numeroProcesso=1532603&classeProcesso=ARE&numeroTema=1389
News from the STF (Supreme Federal Court) regarding the lifting of the suspension in the first instance and in the TRTs (Regional Labor Courts), with the explanation that the proceedings will be stayed again at the end of the processing in the TRT: https://noticias.stf.jus.br/postsnoticias/stf-retira-suspensao-de-processos-sobre-pejotizacao-na-primeira-instancia-e-nos-trts/
Date of the decision, June 17, 2026, and practical effects for liability management: https://www.casilloadvogados.com.br/stf-determina-retomada-de-processos-de-pejotizacao-tema-1-389-nas-instancias-ordinarias-reflexos-para-as-empresas/
Case of Águas Lindas de Goiás, Rcl 86.571/GO, with the dismissal of Theme 1.389 and the reasoning of Judge Ranúlio Mendes Moreira: https://www.trt18.jus.br/portal/stf-afasta-aplicacao-do-tema-1389-em-acao-em-tramite-em-aguas-lindas-de-goias-que-discute-vinculo-empregaticio-decisao-e-vinculante/
Suspension of execution of a judgment that has already become final and unappealable, ordered by Gilmar Mendes, until the judgment of Topic 1.389:
https://www.migalhas.com.br/quentes/459993/gilmar-suspende-execucao-sobre-pejotizacao-ate-stf-definir-tese
A survey of 408 decisions regarding the jurisdiction of the Common Courts between 2021 and 2026, attributed to the law firm Eduardo Ferrão Advogados Associados, and information about the start of the trial in November 2025 with suspension due to a request for review in December: https://managefy.com.br/blog/pejotizacao-stf-tema-1389/
