Protecting employee privacy in the workplace Contributed by Marval O'Farrell & Mairal March 21 2012 Introduction Control over employees Data protection Comment Introduction One of the most characteristic aspects of labour law in Argentina is the protection of employees' working conditions and rights. Such protection is specifically guaranteed to employees through the establishment of a number of principles that form the basis of the employer-employee relationship. These principles are based on the consistent aim of protecting employees' dignity and privacy rights, which are enshrined in the Constitution itself - Article 19 of the Constitution sets forth the general and basic right to privacy for all Argentine inhabitants. In Argentina, the legal framework governing labour relationships is regulated mainly under the terms of the Labour Contract Law (20,744). The basic principles under the law include: l substance over form; l public order; l no waiver of labour rights; l no adverse modification of labour conditions; l in dubio pro operario (ie, when in doubt, favour the employee); and l good faith. Under the scope of the Constitution and the law, three central features stand out in terms of employees' dignity and privacy rights: l the faculties given by the law to employers in order to organise and direct company business; l the limits of such powers; and l the control over employees' activity authorised by the law. This update outlines the measures that employers can use in order to control the different aspects of the working relationship and the limits involved in such supervision, as they directly relate to employees' privacy rights. Control over employees According to the law, employers are entitled to organise the running of the company in order to achieve its objectives. The employer can organise the company's exploitation or establishment, both economically and technically, including control over workers' activity and working conditions. In that context, the employer has the authority to direct and organise its business and employees should observe the employer's instructions regarding the work to be carried out. However, the scope of such control should be determined by examining specific issues that may arise in the use of this power. Employer control should be exercised in a functional manner, considering the company's objectives, production demands, and without detriment to the preservation and improvement of employees' personal and patrimonial rights (Section 65 of the law). The law also details the principle of good faith, according to which both parties should Employment & Labour - Argentina Authors Javier E Patrón Enrique M Stile treat each other by standards of collaboration and uphold shared aims. Under the law (and other case law), five types of control over employees have been developed by most companies. Such control should never infringe on employees' privacy rights and dignity. Employees' labour activity Employee activity can be monitored by employers in many ways, the most usual being either by audiovisual control or through email account and social network surveillance. Audiovisual control There is no specific regulation in relation to audiovisual control, so case law should therefore be applied in order to determine whether the employer is using such power in a functional manner (as the law requires) and not invading its employees' privacy. An example of functional use of such control, under local case law, could be the use of cameras in the workplace for safety purposes. Provided that the cameras are installed for a purpose that could not be considered an invasion of employees' privacy, any misconduct by an employee recorded on tape could be used by the employer as a cause for dismissal. In such cases the employer would have the burden of proving that the alleged misconduct by the employee actually existed. The use of video as evidence in labour cases is debatable. The cameras must be located in common spaces (eg, halls or offices), keeping employees' privacy rights in mind - a camera in office restrooms or other private locations could be considered a violation of such rights. Email account and social network surveillance The use of email accounts and social network tools in the workplace is also not regulated under a specific law. The parameters and rules of their use are therefore usually established by employers and specific case law. A Labour Court of Appeals decision stated, in relation to use of business email accounts, that: "if a company does not have a clear policy about the use of this tool, and it fails to advertise to the employee that such use would have to be made exclusively for his/her labor activity and also fails to communicate the company policy about the correct use of those tools, it might generate in the employee a false privacy expectation."(1) Under such interpretation, it could be inferred that if the specified requirements were met, the employer would be authorised to monitor a business email account with low risks to privacy rights. In certain circumstances an analogous conclusion can be made in relation to social network tools. It has also been determined that: "it remains beyond doubt that the access to an informatic system and to the Internet granted by the employer to the employee has the characteristics of a work tool, which has to be used only to fulfil labour tasks and not for personal matters."(2) Within the last few years, case law has been developing an increasing broad concept of work tools, including not only email accounts, but also information technology in general, computers, software, internet access and internet use, among other things. However, there appears to be no case in Argentina that specifically discusses the use of social network sites. Employers are permitted to control the use of business email accounts and social network tools at work within certain limits - namely, to have a labour tools policy. In the case of social networks, employers may monitor the time spent by the employee and the sites visited, but may not access the employee's own accounts without authorisation. However, in order to control the correct use of such policies, employers must advise their employees of the limits of the use of the tools and the power held by the employer. Prevention of robberies In order to prevent minor thefts of company assets, under the law (Sections 70 through 72) employers are permitted to perform personal checks on employees, provided that such checks are: l performed only in order to protect the assets of the company; l not harmful to the employee's dignity (either physical or moral); l practiced with discretion, thus preventing any situation of violence or clashes with staff; l practised using an automated employee selection process, in order to avoid allegations of discrimination; l communicated to the Administrative Labour Authority; and l in the case of female employees, made by female personnel. The treatment of the law and labour regulations in general concerning workers' dignity and privacy is highly relevant, as the above limitations are directly aimed at preventing any abuse of power by employers that may invade their employees' privacy. Hygiene and security conditions at work Under Law 24,557, all companies in the private sector must be insured by a work risk insurance company. Each insured employer must have its employees perform certain medical examinations before, during and at the end of the labour relationship. Such controls may include: l pre-hiring medical examinations; l periodical medical examinations; l medical examinations after long periods of absence; or l medical examinations performed before transfer of the labour contract. Although such examinations could be argued to be an invasion of employee privacy, their basis in law and the aim of protecting employees' health make them permissible. However, such examinations must be executed in a functional manner, minimising them to a need-for-the-job basis. The employee is also entitled to be duly informed about the results of such examinations. For privacy, dignity and anti-discrimination reasons, AIDS tests are prohibited in this type of labour medical examination, save for extreme circumstances and only where the employee's consent is obtained in advance. Leave of absence Under the Labour Contract Law, employers are entitled to request information on the physical and psychological conditions of employees whenever they claim to be ill or injured, even if the cause of the absence is not related to work. The employer is then entitled to inspect the condition claimed by the employee through professional examination. As in the case analysed above, employees should not claim invasion of their privacy, since the purpose of this control is to protect their health and to secure payment for sick days if their absence is confirmed by the employer's doctor. The inspection should therefore be conducted by a medical doctor and not by the employer itself. Employees are required by law to be available for such medical examinations. Off-duty activities The broad concept of privacy and leisure time as a right provides that employers have no control over off-duty activities, since they are not work-related and are therefore beyond the employer's powers of control over the employee. However, specific labour relationships may require certain behaviour by their employees outside work. In such cases, whenever the behaviour of employees in their private life may be replicated in the working environment, employers may be allowed to set general guidelines of behaviour. Some relationships will require certain behaviour from employees, due to the special services rendered. Such relationships are usually limited to upper management, who are highly associated with the employer's image and reputation. Misconduct in such cases may cause damage to the employer's image and prestige, and therefore the employer would have more arguments to invoke measures in relation to out-of-work behaviour. However, the analysis should be made on a case-by-case basis, since the exceptions to the general rule (ie, no intrusion into employees' personal lives) could lead to litigation. Data protection As mentioned above, labour communications in the workplace are unregulated; however, the handling of personal information is strictly protected in Argentina. The Data Protection Law (25,326) imposes strict limitations on the handling and processing of personal information, including a prohibition on transferring or assigning personal information to countries that have lower levels of data protection than Argentina without written prior authorisation from the owner of such data. Very few exceptions are made to the requirement for such consent to be obtained. Comment According to the local regulations, employers are entitled to perform controls over their employees as a consequence of their powers of organisation and direction of the company. However, such controls should be executed within the specific limitations mentioned in each case, bearing in mind that the dignity and privacy of employees should be protected at all times. For further information on this topic please contact Javier E Patrón or Enrique M Stile at Marval O'Farrell & Mairal by telephone (+54 11 4310 0100), fax (+54 11 4310 0200) or email (jep@marval.com.ar or ems@marval.com.ar). The Marval O'Farrell & Mairal website can be accessed at www.marval.com.ar. Endnotes (1) Pereyra v Servicio de Almacén Fiscal Zona Franca y Mandatos SA, Labour Court of Appeals, Room VII, 03-27-2003. (2) Zilberberg v Total Austral SA, Labour Court of Appeals, Room X, 06-10-2005. The materials contained on this website are for general information purposes only and are subject to the disclaimer. ILO is a premium online legal update service for major companies and law firms worldwide. Inhouse corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription. Register at www.iloinfo.com. Online Media Partners © Copyright 1997-2010 Globe Business Publishing Ltd