The Data Protection in Labour Matters is finally regulated. For the long-awaited new Organic Law on Data Protection and Guarantee of Digital Rights. Published in the Official State Gazette (BOE) on 6 December 2018, which came into force the following day.
A more detailed analysis of this new Law will be deal with in a separate article below. However, we will focus here on the novelties that this new Organic Law provides in the labour field.
Specifically, it regulates for the first time, the right to privacy of workers in digital devices, video surveillance and geolocation, as well as digital disconnection. All of these rights are included in new sections. Both article 20 of the Workers’ Statute Law and article 14 of the Revised Text of the Law on the Basic Statute of Public Employees.
Data Protection in Labour Matters
Let’s take a closer look at these new rights:
Right to privacy and use of devices in the workplace (Art. 87)
- The employer will be able to access the content of the employee’s devices for the sole purpose of:
- monitoring compliance with work obligations
- ensure the integrity of these devices
Criteria for the use of digital devices should be established by the employer, with the participation of workers’ representatives. In any case, they must respect the minimum standards for the protection of privacy.
- If the employer permits the use of digital devices for the employee’s private purposes, he must specify precisely the authorised uses and the periods of use for this purpose. In all cases, the employee’s privacy must be preserved and the employee must be informed.
Right to digital disconnection in the workplace (Art. 88)
The right of digital disconnection of employees outside of working time is recognized. Respect for their time off, leave and holidays and for their personal and family privacy.
Always taking into account the nature and purpose of the employment relationship, the exercise of this right shall be subject to the provisions of collective bargaining. Or, failing that, by agreement between the company and the workers’ representatives.
The employer shall draw up an internal policy addressed to all employees, including managers. In which they shall define the modalities for exercising the right to disconnection and the training and awareness-raising actions on the reasonable use of technological tools, avoiding computer fatigue. In particular, the right to digital disconnection of teleworkers will be preserved.
Right to privacy with regard to the use of video-surveillance and sound recording devices in the workplace (Art. 89)
Employers, in the exercise of their functions of control of employees, may treat the images obtained by cameras and video-surveillance, within the legal limits. It is obligatory to previously inform the workers’ representatives and the workers themselves.
In the event of a flagrant commission of an illegal act by employees. The duty to inform shall be understood to have been fulfilled when there is at least one information device in a sufficiently visible place. The existence of the treatment, the person responsible for it and the possibility of exercising the rights are identified.
However, the recording of sounds in the workplace is limited to very specific cases. Such as the risk to the safety of installations, goods and persons. And the principle of proportionality and minimum intervention must be respected.
Under no circumstances may sound recording or video-surveillance devices be installed in places intended for workers’ rest or leisure (changing rooms, toilets, canteens, etc.).
Right to privacy when using geolocation systems in the workplace (Art. 90)
The employer may process (within the legally stipulated limits) the data obtained through geolocation systems for the exercise of workers’ control functions, provided that it informs:
- previously to the same about the existence and characteristics of these devices
- their rights of access, rectification, limitation and deletion.
Therefore, it is necessary to have specific regulation that regulates the use of digital devices in the company.
The new Organic Law establish the duty of confidentiality of persons providing services. For both the responsible manager and the processing person. Even after the employment relationship or provision of services. We also recommend regulating this extreme with the employees by means of an ethical code. Or at least by means of specific contractual clauses
If you require any clarification regarding what these legislative changes regarding Data Protection in Labour Matters refers to, please do not hesitate to contact us.
Arrabe Integra
Legal and Labour Consulting Dept.