Entrepreneurship and employment relationships: the requirement of non-entrepreneurship in contemporary contractual relationships

Abstract

This article examines contemporary labor contracting, marked by the spread of Brazil’s MEI regime and one-member limited liability companies (SLU), and proposes a doctrinal test to classify relationships at the boundary between Labor Law and Business Law. It argues that employment formation requires, beyond the classic elements of Article 3 of the CLT, the inquiry into a new constitutive element: non-entrepreneurship (não-empresarialidade), derived from the combined reading of Article 2 of the CLT and Article 966 of the Civil Code. Under this approach, entrepreneurship (empresarialidade)—the worker’s exercise of an organized economic activity—acts as a barrier to employment recognition, shifting the relationship toward a civil-business framework even when factual indicators of control and continuity appear. The study differentiates the individual entrepreneur, MEI, and SLU, and offers a situated critique of the broad use of the term “pejotização.”