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.