Quais são os direitos sociais da trabalhadora diarista na ordem jurídica brasileira? uma análise jurisprudencial do Superior Tribunal de Justiça e do Tribunal Superior do Trabalho

Abstract

This study investigates the social protection afforded to domestic day workers (diaristas) within the Brazilian legal system, addressing the persistence of an essential form of care work that remains outside the core of labor protection and, consequently, with reduced access to social rights. The analysis starts from the contrast between the constitutional centrality of work and the way the legal framework more consistently recognizes rights only for domestic employees under a typical employment relationship, while the diarista, generally hired for up to two days per week in the same household and paid per day, is legally positioned in a less protected category. In order to answer the research question regarding which social rights apply to diaristas in Brazil, the study combines a theoretical foundation on human dignity, the social value of work, decent work, and the prohibition of social retrogression, with a normative analysis of the domestic work framework and a critical examination of the continuity criterion as a mechanism of inclusion and exclusion. It then develops a dual empirical and institutional assessment, on the one hand through data and diagnoses on informality and contributory coverage, and on the other through the analysis of labor-law precedents after 2015, focusing on the judicial reasoning pattern that denies the employment bond based on the number of working days and thereby stabilizes a practical “grey zone” of non-rights. The findings indicate that, although protection has been formally expanded for part of the sector, it is not distributed evenly, and diaristas tend to bear the costs and risks of work more intensely, undermining the effectiveness of social rights and reinforcing the need for normative correction and an effectiveness agenda compatible with the reality of multiple service recipients.