As the workplace becomes more and more remote, employers are starting to use surveillance methods to oversee the productivity of their employees, which currently happens to include monitoring their every movement. As never before, employers need to be cognizant of their legal obligations regarding surveillance and privacy in the everchanging "workplace".
The case (RIT T-518-2022 of the 2nd Labor Court of Santiago), had its roots in a lawsuit by which a worker complains against a series of acts that he considers to be infringements of his right to physical and psychological well-being. He also claims the infringements go so far as to reduce his days of legal holiday, as well as the fact that there were modifications to the internal attendance registration system which eliminated the registration of the actual days he worked. There was also a system put in place requiring the employer to report each time he would need to use the bathroom.
The present case deals with the employer's power to provide a work tool such as a webcam and the possibility of requiring the worker to keep it switched on and permanently focused on the activity being carried out.
In settling this discrepancy, the judge of the first instance established that the employer acknowledged that he had given the worker a camera to carry out his duties, and "that the defendant did not indicate how the camera would fulfil the functions of a work tool, nor did it indicate the limits of the circumstances in which it was to be used or the hours in which the camera was to be in operation. Therefore, the defendant does not provide elements that justify the measure adopted with respect to the plaintiff worker in specific and even with respect to other workers", (...) "therefore, by not accrediting the justification of the measure or its limits, which would even contradict the administrative jurisprudence of the Directorate of Labor, for example, in opinion 2328/130 of 2002 and in opinion 3125 of 2018, this Court considers that the precautionary measure requested by the plaintiff has sufficient grounds to be decreed".
In other words, the Court decrees the temporary removal of the worker from his duties, without affecting his compensation, and maintaining the right to receive 100% of his salary, sending the background information to the Directorate of Labor so that it can perform an official review.
This is therefore an interesting ruling, which is noteworthy in that the employment relationship is still in force, and the judge orders a series of measures to incapacitate the act that infringes on a necessary right, without prejudice to the fact that the merits of the case are still pending resolution.
The underlying principle of the law is that privacy is a human right, and to that we have an expectation of a degree of privacy in our lives. That being said, privacy is not an absolute right. That means that sometimes actions that would normally be considered as intrusive are sometimes legally justified.
But where the context is not self-evident, it gives rise to situations where one party feels that their actions are justified, but the other feels that it is an absolute invasion of their privacy. This becomes relevant when we consider this in an Employer-Employee setting.
Nevertheless, the monitoring of workers should not be seen as a demonization. The data collected can be used to enhance the well-being of workers as well as to protect the interests of the employer. The challenge is for the employer to assess the risk posed by "telework" and to respond in a measured way, by limiting the encroachment on their employees' right to privacy.
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