Employees earning as content creators: how far the employer's authority goes

A growing number of people now earn income, whether full or supplementary, by producing content on the internet. Artificial intelligence has accelerated the movement, because a single person can now produce script, narration and imagery at a volume that once required a team. Many of these people did not leave their jobs, and that is where the issue reaches the HR department.

The question employers ask is usually direct. I found out my employee runs a channel and earns money from it. Can I dismiss for cause?

In most cases, the answer is no. And the reason is less obvious than it seems.

What the law does not prohibit

The Brazilian Labor Code (CLT) contains no general prohibition on holding a second activity. An employee may hold two jobs, and may carry out self-employed or business activity outside contracted working hours. An employment contract buys time and diligence within the working day, not exclusivity over the worker's economic life.

An exclusivity clause only produces effect where there is concrete justification, and even then a breach does not automatically become serious misconduct. What the law does provide is one specific ground for dismissal for cause, and it is narrower than the common reading suggests.

Article 482, item "c", and its requirements

The provision invoked in these cases is article 482, item "c", of the CLT, which addresses habitual trading on one's own account or on behalf of a third party without the employer's permission, where it constitutes an act of competition against the company the employee works for, or is detrimental to the service.

The prevailing reading extracts from this elements that must coexist:

• Habitual conduct. The behaviour must be repeated, not occasional.
• Absence of permission. If the employer authorised it, expressly or tacitly, the ground falls away. Prolonged and known tolerance is generally read as tacit authorisation.
• Competition against the company or detriment to the service. This is the decisive element, and the one most often forgotten.

The Superior Labor Court applies this last requirement strictly. Habitual trading is established where the employee competes for the employer's customers, reducing its revenue and causing loss. A channel about cooking, ancient history or music, run by an employee of a metalworking plant, competes for no customer at all.

Outside that framework, what exists is an employee with a second occupation. And the law does not penalise that.

The practical consequence matters. A dismissal for cause based solely on the existence of the channel tends to be reversed, and reversal usually brings full severance entitlements and, depending on the case, moral damages, where the allegation of serious misconduct proves unfounded.

The grounds that can actually support a penalty

Where side activity does create a real problem, the correct legal basis is almost always a different one, and each ground requires its own evidence.

Negligence, article 482, item "e". Applies where performance demonstrably declines. What supports the penalty here is not the channel, but the documented drop in productivity, the delays, the errors, the prior warnings. Negligence generally requires a graduated scale of penalties, because it is a fault established by repetition.

Dishonesty, article 482, item "a". Applies where the employee uses company resources in the private operation. Corporate computer, software licence paid for by the company, recording equipment, subscribed image bank, or working hours themselves. Here the fault is serious and dispenses with graduation, but it depends on consistent evidence of the diversion.

Breach of company secrecy, article 482, item "g". Applies where published content uses internal information, client data, an undisclosed project or material under confidentiality.

Insubordination, article 482, item "h". Applies where a written internal rule on side activity exists and was previously communicated, and is breached. Without the prior rule, there is no order to breach.

Improper use of the company's brand or image. Where the employee presents themselves as linked to the employer, or records on company premises, the issue ceases to be purely employment-related and reaches industrial property and the legal entity's image.

None of these grounds is presumed from the existence of the channel. All depend on their own facts and evidence.

The effect few companies map

There is a layer of this phenomenon that rarely appears in disciplinary discussion and that now carries concrete regulatory consequences.

Content creators frequently work at night and on weekends. Someone who closes the private operation in the early hours arrives at the workplace the following day in a different condition. In hazardous activity, this stops being a productivity matter and becomes a safety matter.

Two points deserve the employer's attention.

The first is risk management. Since 26 May 2026, under the amendment introduced by Ministry of Labour Ordinance 1,419 of 27 August 2024, work-related psychosocial risk factors must be included in the Risk Management Programme provided for in Regulatory Standard 1, and labour inspectors may issue infraction notices against companies that have not mapped them. Fatigue, sleep deprivation and overload fall within this field. The company is not responsible for the employee's private life, but it is accountable for identifying and addressing the risk it knows about within its own environment.

The second is contributing cause. Article 21, item I, of Law 8,213/1991 treats as an occupational accident one which, although not the sole cause, contributed directly to the injury. If an accident occurs and fatigue enters the discussion, the company will need to show what it knew, what it assessed and what measures it took. Contemporaneous records are worth more than later explanations.

The limits of the employer's authority

It is worth stating what the company may not do, because excess here creates liability of its own.

The employer may not generally prohibit an employee's private activity, nor make the contract conditional on waiving it. Nor may it turn social media monitoring into surveillance of private life. Privacy and private life are inviolable under article 5, item X, of the Federal Constitution, and the processing of personal data obtained through such monitoring is subject to Law 13,709/2018, including as to legal basis, specified purpose and proportionality.

A dismissal motivated by opinion content published by the employee, with no impact on the contract, tends to be read as discriminatory or as a breach of freedom of expression, with risk of reinstatement and an award of moral damages.

What the company should have in place beforehand

What decides these cases is built before the problem appears:

• A written side activity policy, defining what must be reported, what is prohibited and why. A rule that does not exist on paper will not support a penalty later.
• Clear rules on the use of equipment, software and working time, defining what belongs to the company and may not be used in private activity.
• Rules on brand, image and premises, covering association with the employer and recording in the workplace.
• A signed confidentiality clause, which is what supports item "g" where published content touches internal information.
• Documented performance management, recording the drop in productivity and a formalised conversation before any penalty.
• A Risk Management Programme covering fatigue and overload, in line with Regulatory Standard 1 as currently in force.
• A graduated scale of penalties, reserving dismissal for cause for misconduct that genuinely warrants it.

The firm's practice

Drafting internal policies on side activity, use of corporate resources and confidentiality, reviewing specific cases before a penalty is applied, and defending companies in claims disputing dismissal for cause form part of the firm's corporate employment law practice. Each case, however, depends on its own circumstances, facts and documents.

Conclusion

The existence of a channel, a monetised profile or a parallel income does not in itself authorise dismissal for cause. The statutory ground invoked in these cases requires competition or detriment to the service, and that is how it has been applied.

What authorises a penalty is the effect of that activity on the employment contract. Declining performance, use of company resources, leaked information, breach of a previously communicated internal rule. Each of these paths has its own evidence and none is presumed.

For the employer, the conclusion is one of management before it is one of law. Dismissing for cause an employee who runs a channel, without that documentary basis, turns an administrative problem into a claim that is hard to sustain. And it leaves out the risk that has genuinely grown in recent years, which is the fatigue of someone working two shifts and operating equipment the next day.

Reference basis for review

• CLT, article 482, item "a" (dishonesty).
• CLT, article 482, item "c" (habitual trading on one's own account or on behalf of a third party without the employer's permission, where it constitutes competition or is detrimental to the service).
• CLT, article 482, item "e" (negligence in the performance of duties).
• CLT, article 482, item "g" (breach of company secrecy).
• CLT, article 482, item "h" (insubordination).
• CLT, article 157 (the company's duty to comply with and enforce occupational health and safety standards).
• Regulatory Standard 1, as amended by Ministry of Labour Ordinance 1,419 of 27 August 2024, on the inclusion of psychosocial risk factors in the Risk Management Programme, enforceable since 26 May 2026.
• Law 8,213/1991, article 21, item I (treatment as an occupational accident in cases of contributing cause).
• Federal Constitution, article 5, item X (inviolability of privacy and private life).
• Law 13,709/2018 (LGPD), on the processing of personal data obtained through monitoring.
• Superior Labor Court guidance on the strict interpretation of habitual trading, which is established where the employee competes for the employer's customers, reducing its revenue and causing loss.
• Brazilian Bar Association Rule 205/2021, to preserve the informational character of the content.

Informational content only. This does not constitute legal advice, an offer of services or a promise of results. Any concrete assessment depends on the facts, the documents and the context of each case.