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Privacy in the workplace

Submitted By Firm: Marval, O'Farrell & Mairal

Contact(s): Enrique M. Stile

Author(s):

Enrique Stile- Javier E. Patrón

Date Published: 4/10/2012

Article Type: Legal Article

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Introduction Probably the most characteristic aspect of labour law in Argentina is the protection of the employee's working conditions and rights. Such protection is specifically guaranteed to the employees throughout the establishment of some principles that are the basis of the employer-employee relationship. However, such principles are based on a consistent idea to protect the employee's dignity and privacy rights, which emerge from the Argentine Constitution itself, which sets forth in Article 19 the general and basic right to privacy for all Argentine inhabitants. In Argentina, the legal framework of labour relationships is mainly regulated under the terms of the Labour Contract Law No 20,744 ('LCL'). The basic principles under the LCL include the principles of substance over form, public order, no waiver of labour rights, no adverse modification of labour conditions, 'in dubio pro operario' and good faith. Under the scope of the Argentine Constitution and the LCL, regarding the employee's dignity and privacy rights we can highlight three central features: • the faculties given by the LCL to employers in order to organise and direct the company's production; • the limits of such power; and • the types of control over employee's activity authorised by the LCL. We shall, in the following paragraphs, give the reader a general overview of the faculties that the employer has in order to control the different aspects of the working relationship and the limits involved in such supervision, as they are directly related to employee's privacy rights. Employer's control power over employees According to the LCL, employers are entitled to organise the production of the company in order to achieve its objectives. The employer has sufficient faculties in order to organise the company, business or establishment, economically and technically, including controls over the worker's activity and working conditions. In that context, the employer has the authority to direct and organise its business and any employee should observe the employer's instructions regarding the work to be carried out. However, the scope of such control should be determined under the examination of specific issues that may arise in the use of this power. Limitations on the employer's control powers Employer's control should be exercised in a functional manner, considering the company's objectives, the production demands, and without detriment of the preservation and improvement of the employee's personal and patrimonial rights (section 65 of the LCL). Along with that specific regulation, the LCL also states the principle of 'good faith' (bona fide) according to which both parties should treat each other by standards of collaboration and shared aims. Different types of controls Pursuant to the LCL and case law, we can see five different types of control over employees, which have been developed in most companies as a result of their activity and which should never infringe the employee's privacy rights and dignity. Control over the employee's labour activity The activity of the employee could be monitored by employers in many ways, with the most common being: the use of audiovisual control; or e-mail account and social network tools surveillance. AUDIOVISUAL CONTROL In regard of this control, there are no specific regulations and therefore case law should be applied in order to determine whether the employer is using such power in a functional manner (as the LCL requires) or there might be an invasion of the employee's privacy. An example of functional use of such means of control could be, under local case law, the use of cameras in the workplace for safety purposes. As long as the cameras are installed with a purpose that could not be considered an invasion of the employee's privacy, any breach PRIVACY IN THE WORKPLACE of the latter recorded on tape could be used by the employer as a cause for dismissal. In that case, the employer would have the burden of proof in order to establish that the alleged breach by the employee actually existed. Still, the use of video as evidence is debatable in labour cases in Argentina. Finally, the cameras would have to be located in common places (halls, offices, etc), bearing in mind the privacy rights of the employees (for that reason a camera in the office restrooms or other private locations could be considered as a violation of such rights). E-MAIL ACCOUNT AND SOCIAL NETWORK TOOLS CONTROL The use of e-mail accounts and social network tools in the workplace is also not regulated under a specific law in Argentina and the parameters and rules of its use are usually granted by the employers and particular case law. In fact, case law has determined a parameter concerning the use of business e-mail accounts when it was stated that: '.. .if a company does not have a clear policy about the use of this tool, and it fails to advertise the employee that such use would have to be made exclusively for his/her labour activity and also fails to communicate the company policy about the correct use of those tools, it might be generated in the employee a false privacy expectation.'. (in Pereyra, Leandro Ramiro v Servicio de Almacén Fiscal Zona Franca y Mandatos SA, Labour Court of Appeals, Room VII, 27 March 2003). Under such interpretation, it could be inferred that if the specified requirements were met, the employer would be authorised to monitor a business e-mail account with low privacy rights risks. In certain circumstances, such a conclusion might also apply analogically 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' (in Zilberberg, Gustavo A v Total Austral SA, Labour Court of Appeals, Room X, 10 June 2005). Within the last few years, case law has been developing an increasingly broad concept of work tools, which has included not only an e-mail account but also information technologies, computers, software, internet access, internet use, among others. However, we are not aware of any case in Argentina discussing the use of social network sites in particular. As a result of this, the employer could be considered to be allowed to control the use of business e-mail accounts and social network tools at work within certain limits (ie, to have a labour tools policy and, in the case of social networks, monitor the time consumed by the employee and sites visited, though not access the employee's own accounts without authorisation). However, it is required to advise the employee about the limits of the use of the tools and the power kept by the employer in order to control the correct use thereof. Personal controls to prevent robberies on the employer assets In order to prevent the consequences of minor robberies from the employees of the assets of the company, under the LCL (sections 70 through 72) employers are allowed to perform personal controls over employees within the following conditions: • it shall be performed only to protect the assets of the company; • it shall not harm in any way the employee's dignity (physical or moral); • it shall be practiced with discretion preventing any situation of violence or clash with the staff; • it shall be practiced by an automatic process of selection of the employee, in order to avoid allegations of discrimination; • the control system applied for the company shall be communicated to the Administrative Labour Authority; and • in the case of female employees, physical controls shall be made by female personnel. As discussed above, it is again noted the high relevance treatment of the LCL and labour regulations in general concerning the worker's dignity and privacy, as the above limitations are directly aimed at preventing any abuse of power by the employer that may invade the employee's privacy. Control over the hygiene and security conditions at work Pursuant to Law 24,557, all companies in the private sector must be insured by a work risk insurance company (Aseguradora deRiesgos del Trabajo, or 'ART'). Such law requires that each insured employer must have its employees perform certain medical examinations before, during and at the end of the labour relationship. Such controls could be as follows: pre-hiring medical exams, periodical medical exams, medical exams after long periods of absence of the employee, medical exams performed before a transfer of the labour contract, among other examples. Although such examinations could be argued to be an intrusion into the employee's privacy, their legal origin and objective is to protect the employee's health. However, they would still have to be executed in a functional manner, minimising the examinations to a 'needed-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 examinations, save for extremely special circumstances and provided the employee's consent is obtained in advance. Medical examinations referred to employee's leaves of absence Under the LCL, the employers are entitled to control 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 the examination of a professional. As with the case analysed above, employees should not claim an invasion of their privacy since the purpose of this control is to protect their health and to secure payment of sick days if the absence is confirmed by the employer's doctor. For such reason, the control is made by a medical doctor and not by the employer itself. Employees are required by law to be available for these medical examinations. Employers control over employee's off-duty activities The broad conception of privacy and leisure time, as a right, provide that the employer has no control at all over off-duty activities, since they would not be work-related and, therefore, they would be beyond the employer's powers of control over the employee. However, specific labour relationships may require certain behaviour by their employees not only during work hours, but also outside of work. In such cases, whenever the behaviour of employees in their private life may be replicated in the working environment, employers are allowed to set general guidelines of behaviour. The special nature of some relationships requires from the employees certain behaviour, due to the special services rendered. This generally relates to top management, highly associated to the employer's image and reputation. Those cases may cause damage to the company's image and prestige and, therefore, the company would have more arguments to invoke the extra-working behaviour to take employment measures. The analysis, however, should be made on a case-by-case basis since the exceptions to the general rule, no intrusion into the employee's personal life, could be litigious in most cases. Data protection Different from our brief explanation about labour communications in the workplace, which are not regulated, handling of personal information is strictly protected in Argentina. Data Protection Law No 25,326 creates very strict limitations on the handling and processing of personal information, including a prohibition to transfer or assign personal information to countries with lower levels of data protection than Argentina without prior authorisation in writing from the owner of such data. Very few exceptions are given to eliminate such consent. Final remarks According to the local regulations analysed, the employer is actually entitled to perform controls over the employees as a consequence of its powers of organisation and direction of the company. However, such controls shall be executed within the specific limitations mentioned in each case, bearing in mind that the dignity and privacy of the employee should be protected in all cases.

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