sexta, 08 fevereiro 2019

The new working rights in the Spanish Organic Law on Data Protection and digital rights safeguard

VolverAs experts labour lawyers, at the BELZUZ ABOGADOS Labour Law Department we have been writing opinion articles on new legislation or case law or controversial issues on labour law, especially, those related to fundamental rights, and this time we aim to give our first opinion on the new working rights provided for in the new Organic Law on Data Protection and digital rights safeguard (Organic Law 3/2018, published in the BOE last 6 February 2018).

As the main novelty, it is worth highlighting specifically the introduction of the right to privacy while using mobile devices in the workplace, as well as the right to disconnect.

Not only those rights are ruled in that organic law, but also the recognition of those rights is covered by the introduction of article 20 bis of the Workers’ Statute, which expressly states that workers are entitled to privacy while using the digital devices placed at their disposal by the employer, to digital disconnection and to privacy against the use of surveillance and geolocation devices.

Regarding the right to workers’ privacy, starting from the employer’s right to access the contents resulting from using the digital media provided to the workers for the sole purpose of controlling the compliance with labour obligations and guaranteeing the reliability of such devices, it is established the obligation for the employer to set use criteria for digital devices, complying at all times with the minimum privacy protection standards in accordance with the social uses and constitutionally and legally recognised rights. Furthermore, the new law provides that workers' representatives must take part in developing such criteria.

As the Spanish and European case law has been establishing, now it is legally provided that the access by the employer to the contents of digital devices which were accepted for private use shall require to precisely specify the authorised uses and to establish guarantees to preserve workers’ privacy, such as, if appropriate, setting periods to privately use the devices, and it is also ruled the workers’ right to be informed on use criteria.

On the other hand, the most outstanding novelty is, in our opinion as labour lawyers, the so called “right to digital disconnection”. This right is established with the purpose of guaranteeing, out of working hours, that the worker’s rest time, leaves and holidays are respected, and it also aims to respect the right of reconciliation of work and personal and family life.

Nevertheless legal regulation does not go beyond this statement of goals and principles and leaves its development to collective bargaining, either through agreements between employers and trade unions with the applicable collective agreements or, failing this, through the agreements between the company and workers' representatives in each company.

The particular practical and binding measures for the realisation of this right shall be articulated through “internal policies” which govern the specific measures to exercise this right and which include training and awareness-raising actions in the company regarding the reasonable use of technology tools that prevent the risk of computer fatigue.

Other new provisions introduced by the new organic law are the legal regulation of surveillance and audio recording devices that the employer uses in the work places. With regards to surveillance, the lowering of formal requirements to it application is highlighted, given that with just a notice of surveillance devices the worker’s right to information is understood to have been met. On the other hand, regarding the possibility of using audio recordings, the law is very restrictive, allowing such a control medium only when there is a risk for the security of the facilities, the staff and the goods.

Lastly, the inclusion of the right to use geolocation devices in order to control the work activity by the employer, which has been already allowed by case law (see here our article on such matter), didn’t lack of an express legal regulation.

At BELZUZ ABOGADOS, through this article, we have generally informed about the new working rights governed by the recent Data Protection Law, although we will have more opportunities to comment it once there are supplementary laws and rulings on the matter.

As an additional commentary, we remark that in general just like with the adaptation to Community Rules of general data protection policies, companies must develop or adapt their Policies for the use of technical means, surveillance, geolocation and the new “right to digital disconnection”, for which they must have the appropriate legal advice.

Pedro-Gomez-Rivera  Pedro Gómez Rivera

Diretor do Departamento Direito laboral | Madrid (Espanha)

 

Belzuz Abogados SLP

A presente Nota Informativa destina-se a ser distribuída entre Clientes e Colegas e a informaçăo nela contida é prestada de forma geral e abstracta, năo devendo servir de base para qualquer tomada de decisăo sem assistęncia profissional qualificada e dirigida ao caso concreto. O conteúdo desta Nota Informativa năo pode ser utilizada, ainda que parcialmente, para outros fins, nem difundida a terceiros sem a autorizaçăo prévia desta Sociedade. O objectivo desta advertęncia é evitar a incorrecta ou desleal utilizaçăo deste documento e da informaçăo, questőes e conclusőes nele contidas.

Madrid

Belzuz Abogados - Despacho de Madrid

Nuñez de Balboa 115 bis 1

  28006 Madrid

+34 91 562 50 76

+34 91 562 45 40

Este endereço de email está protegido contra piratas. Necessita ativar o JavaScript para o visualizar.

Lisboa

Belzuz Advogados - Escritório de Lisboa

Av. Duque d´Ávila, 141 – 1º Dtº

  1050-081 Lisboa

+351 21 324 05 30

+351 21 347 84 52

Este endereço de email está protegido contra piratas. Necessita ativar o JavaScript para o visualizar.

Porto

Belzuz Advogados - Escritório do Porto

Rua Julio Dinis 204, Off 314

  4050-318 Porto

+351 22 938 94 52

+351 22 938 94 54

Este endereço de email está protegido contra piratas. Necessita ativar o JavaScript para o visualizar.

Associações

  • 1_insuralex
  • 3_chambers_global_2022
  • 4_cle
  • 5_chp
  • 6_aeafa