Teleworking constitutes a manifestation or species of the “remote work” genre regulated in art. 13 ET. For its part, the AEPD has established the criterion that the image and/or sound recording of a person, whether a worker or not, is personal data.[Yo]. The activities associated with displays of the employer's power of control, direction and discipline find a direct limit in the workers' right to privacy. The art. 20 ET allows the implementation of the video surveillance as a control mechanism and for some months the government has favored the development of teleworking as the preferred modality for providing services on behalf of others. In this new scenario, the need arises to establish which actions will be harmful to the privacy of workers and which will not.
Rights and guarantees for teleworkers
The European Framework Agreement on Teleworking extends to teleworkers the rights generally recognized for workers and establishes guarantees for the protection of your personal data and privacy (clauses 5 and 6). The recent measures issued in the workplace favor the practice of teleworking, a form of remote service provision that has been rescued from oblivion and whose implementation was very limited. Until then, the businessman had been very conservative in relation to the use of teleworking.
Limitations in video surveillance
Video surveillance is a control mechanism extremely sensitive in the workplace, his employment responds to a proportionality judgment so that your application is a last ratio. This prior evaluation aims avoid abusive situations such as the installation of video surveillance in changing rooms, workplace toilets or spaces associated with activities whose disclosure is unnecessary. For this reason, the AEPD has stressed that In no case can the employer process personal data that are not directly relevant in the scope of the employment relationship, such as the behavior or personal characteristics of the workers or the internal contacts with other workers or external contacts of the worker. In addition to this, in another report the AEPD, fortunately, has expressed itself establishing as its purpose avoid omnipresent surveillance, in order to prevent the vulnerability of the person[ii].
How should teleworking surveillance be developed?
Implemented in relation to teleworking, the employer can establish means of control through the internet, software packages, logging keystrokes or mouse movements, randomly capturing screenshots, logging applications used, and even using webcams to collect data. Seen this way, the use of these resources during teleworking, which will mostly take place at the worker's home, is a highly invasive measure.
These treatments according to GT29 are disproportionate and unfounded to claim that they are based on a legitimate interest. Although the recommendation will always be to analyze each specific case, taking into account the tasks and activities carried out, video surveillance during times of teleworking is an aggressive measure. The employer, for his part, must adopt technical activities related to access to information systems under this modality, security measures that will be transferred to communication networks.
[Yo] The image and sound identify and personalize us. For more information on this content, please refer to AEDP Resol R/00035/2006 dated February 27, 2006.
[ii] AEPD Report 0495/2009.
