Recently, on a single opportunity, based on productivity and work quality monitoring metrics performed on a remote regime, including using tools that control effective use of computerized equipment, as well as by calculating the amount of “clicks” on mouse.
So far, information on the subject is largely speculative. Itaú has not confirmed the number of workers dismissed or the exact criteria adopted for such a decision.
However, this news ends up bringing light to a matter of paramount importance to labor law: can the employee be monitored at all times by the employer? Are there limits to inspection power? Are there safe ways to implement these mechanisms? Without pretending to exhaust such a vast theme, the purpose of this article is to bring relevant reflections and promote its debate.
As a general rule, the Labor Court admits broad monitoring of employees by the employer, provided that there is no violation of constitutional rights, such as preserving their intimacy and privacy.
The possibility of using surveillance cameras in the workplace, for example, is the object of peaceful understanding in jurisprudence, which only has prohibitions regarding its installation in environments such as locker rooms and toilets, precisely to avoid the embarrassment of employees.
In a recent judgment, when considering similar question – because in teleworking the workplace often ends up being the residence of the professional himself – the Regional Labor Court of the 9th Region considered the requirement of a company to be unlawful for one of its employees to remain with webcam Linked throughout the hours, even without apparent need to do so, thus violating the intimacy of the home and even exposing third parties without bonding with the employer.
Demonstrating the relevance and actuality of the subject can be mentioned very similar in comparative law. In Europe, under the rigor of GDPR (the European Data Protection Law), a Dutch court determined that a US company would compensate worker dismissed for refusing to maintain the maintenance webcam Linked for 9 hours per day, classifying the practice as a disproportionate violation of privacy.
The rational is similar to the understanding already adopted by the Labor Court over the years for analogous cases – filming is possible, but the limits of privacy and intimacy should be observed – requiring reasonable employers when editing their internal rules, to create duties and obligations that have a plausible justification. By way illustrative, determining that everyone keeps the camera activated during telepressial meetings is a lawful and defined purpose practice, driving away the abuse of the measure.
Computer monitoring
With regard to the use of digital tools, provided they are equipment or systems provided by the employer (EG, laptops, tablets, corporate cell phones), monitoring is not invasive and there is an unequivocal science of the employee about their existence (preferably through internal policy science on the subject), the control of employees’ activities is usually regarded as lawful – including and sent by correspondences and sent by Corporate Electronic Mail Account – not only for productivity measurement as to safeguarding other legitimate interests of the employer, such as those related to the security of their information and protection of confidential/competitively sensitive questions.
Following this reasoning, there are robust arguments for defending the validity of the tool supposedly used by the financial institution to control “clicks”, because its main purpose is not to excessively expose the employee and much less embarrassing it, but to identify long periods of inactivity and existence of effective labor compatible with the records of point controls, even allowing possible fraud.
It is crucial to emphasize that the tool itself may not be sufficient to support significant decisions – such as dismissal for just cause. This is because employees can present several justifications in their self -defense, such as questions about the accuracy of the tool and reliability of the records obtained by it, loss of connection to the internet and consequent activities of activities offline. This complexity, therefore, should always be considered by companies before any deliberation on the subject.
Imagine, for example, an employee whose point records attests 8 hours of work, but the software Monitoring points only 3 hours of activity on the computer. This information, by itself, may not justify/base the dismissal for just cause, as the employee may claim that he was attending telephone calls, in meetings with clients or analyzing printed documents. The tool is an indicator and a great ally, but not absolute proof.
Still, employers are not recommended to adopt assessment and exemption from employees based solely on such data and completely automated, including the restrictions provided for in the General Personal Data Protection Law for decisions based solely on automated personal data processing and guarantee to the holder of the data to request such decisions, a question that can generate interesting debates in labor field.
In short, despite favorable precedents, the implementation of control tools should be cautiously, always preceded by an assessment of their viability and legality by labor law specialists, especially in view of technological advances and creation of new mechanisms for which jurisprudence has no consolidated understanding, aiming to mitigate associated risks and enable safer decisions by employers.
A good practice, in any case, is to regulate the theme through an internal policy, with a clear indication of the tools implemented by the employer, the possibility of monitoring the activities performed, expected conduct of employees in the performance of their professional activities and possible consequences in cases of non -compliance, which should be delivered to all employees and ideally object of recurring presentations/training.
An alternative certainly interesting and innovative, but still little explored in practice, is the implementation of such mechanisms through collective bargaining. This path offers greater legal certainty for employers and tranquility for employees regarding the legality of the procedure, as approved by representatives of their category – such an approach even helps to avoid animosities in the workplace, harmonizing technological innovation with the protection of workers’ rights.
