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The new Data Protection Law includes employees’ digital rights

Employee privacy rights related to the use of digital devices, the right to disconnect, the use of video surveillance, and the recording of sounds and geolocation have been written into the law for the first time

The new Law on Data Protection and Safeguarding Digital Rights, published in the Official State Gazette on December 6, 2018, contains a number of very important new items of legislation from the standpoint of labor law.

This law, which came into force last Friday, December 7, amends the Workers’ Statute by creating an article 20 bis. The new article recognizes employee privacy rights related to the use of the digital devices made available to them by the employer, the right to disconnect and privacy rights related to the use of video surveillance and geolocation devices, making them subject to the new law’s own data protection legislation.

The first notable component of the new law is its rules on employee privacy rights related to the use of digital devices made available to them by their employer:

  • It authorizes employers to access the contents of these devices only to monitor compliance with labor obligations and to ensure the integrity of such devices. Companies must establish guidelines on the use of digital devices, which are required to be subject to minimum privacy protection standards, and determined with the participation of the workers’ statutory representatives.
  • For the permitted uses of a corporate device for private purposes, it will be necessary to specify precisely which types of use are authorized and to put safeguards in place to preserve privacy (such as determining the periods during which the devices may be used for private purposes).
  • Employees must be informed of these guidelines on the use of such devices.

The right to disconnect (digital disconnection) for employees is also recognized. This right seeks to ensure that employees’ breaks, permissions and holidays are respected, as well as their personal and family privacy:

  • The right will be subject to the terms determined by collective bargaining, or failing this, to the terms agreed between the company and the workers’ statutory representatives, in view of the nature and subject-matter of the employment relationship.
  • The right to disconnect must be set out in an internal policy prepared after hearing the workers’ representatives. The policy must define the ways in which the right to disconnect may be exercised, along with initiatives for training and raising awareness over making reasonable use of IT tools. In particular, the rights of employees working from home must be preserved.

The law also determines employee privacy rights related to the use of video surveillance and sound recording devices in the workplace:

  • In relation to video surveillance, companies are allowed to process the images obtained to monitor employees’ compliance their labor obligations, within the statutory limits and subject to the obligation to inform the workers’ representatives and the workers themselves in advance.
  • If blatant unlawful conduct is captured on film, the requirement to inform employees that video surveillance is in operation is deemed to have been met, when at least one notice has been placed in a sufficiently visible place.
  • Sound recordings in the workplace are limited to very specific, exceptional cases (such as where there is a risk to the security of the premises, to goods and to individuals).
  • Sound recording or video surveillance devices are not allowed be installed in employees’ rest or leisure areas.

Another element that has been written into Spanish law for the first time is the right to privacy with respect to the use of geolocation systems in the workplace. The use of these systems is permitted to monitor employees, within the statutory limits and subject to the obligation to inform both the workers’ representatives and the employees themselves of the existence and characteristics of these devices.

Turning to another area, in cases of corporate transactions or transfers of businesses or lines of business, processing and transferring employees’ data, even before the transaction, will be deemed lawful if it is necessary for the successful outcome of the transaction and if it ensures continuity in provision of the services.

The law also contains provisions on whistleblowing information systems. In this case, human resources staff with managing and monitoring duties are only allowed access to the information contained on this system where the obtained information suggests that there has been unlawful conduct at the workplace which could involve the need for disciplinary measures.

Lastly, the new law allows collective labor agreements to lay down additional safeguards to those established by the legislation.