Arquitetura das escolhas e a eficácia de normas trabalhistas: uma análise crítica do possível uso de insights comportamentais nas políticas públicas de trabalho

Abstract

This thesis intends to study the impact of bounded rationality in decision making, identifying innovations in terms of strategies and tools that can be used by the government to ensure the effectiveness of labor standards. The encounter between economics, psychology and law fosters new perspectives for the study of the legal phenomenon and the limits of State action in the architecture of choices, a reason that, together with the importance of safety and health of Brazilian workers, brings relevance to the theme. The main question is whether the use of behavioral sciences instruments by the government is a legitimate and effective alternative to implement labor standards. The question of bounded rationality and the Economic Behavioral Analysis of Law is introduced. In a special way, the labor market is contextualized, considering the contemporary relations of production and consumption and its consequences in terms of worker protection inserted in the logic of self-motivated performance and its possible disposal. Some cognitive biases that have greater relevance within the labor universe are presented. The necessary interdependence between the effectiveness of the labor standard, public policies and the compliance of organizations are the universe of the use of behavioral tools by the public power. Two moments in the research are found in which behavioral sciences can be used in order to help the government to make labor standards effective: in the creation of the standard, when the law can be behaviorally informed considering the existence of cognitive biases, and in the execution of the law. of public policies that facilitate the decision of their obedience by the social body. In this phase of conformation of the norm with the world of facts, nudges can be used as a strategy. The context of its creation, defining characteristics and typology are analyzed in order to guarantee the relevance of its use in the labor context, as well as experiences developed in other countries that can serve as a parameter for the use of nudges in Brazil are presented. The use of the technique with the certainty that the sphere of personal freedom of choice of the citizen is not being advanced excessively involves the presentation of its theoretical basis allied to the critical analysis of its legitimacy and of the social actors responsible for it. The care is justified by the judicious approach that must exist in the use of influences on behavior by the public power. In this way, limits and guidelines are proposed for the use of nudges, which include the preference for those who activate the reflexive decision-making system, the creation of methods such as proportionality to verify the pertinence and the avoidance or use of those that seek to modify citizens' personal preferences. Restricting the use of nudges to the compliance of behavior to norms produced within the rules of the legislative process is a requirement that confers reliability on their use. It is also considered convenient to create a specialized nucleus in behavioral insights in the Federal Government for the establishment and analysis of these criteria and limits. In this way, a suggestion of nudges is presented to effectively implement a rule that implements goals of the Federal Government's Pluriannual Plan in the area of safety and health at work. The proposal of nudges that help in the Management of Environmental Risks provided for in NR nº 1 of the Ministry of Labor and Social Security indicates that their use in other areas of the work theme is feasible. Finally, the use of behavioral sciences tools in the scope of labor relations is relevant, but with the use of beacons and limits, as well as the preferential choice for nudges that lead to reflective thinking, aiming at compliance with the legislation.