1. Are employers permitted to monitor social network use (such as Facebook or Twitter) by employees at work?
The use of social network tools in Argentina in the workplace is not regulated under a specific law and the parameters and rules of its use are usually granted by the employers and the particular case law. Nevertheless it has become a raising concern for the employers.
In that context, we have an opinion on the subject based on general guidelines and analogy from monitoring of e-mail accounts and electronic systems, as well as general powers of control and organization by the employer.
The employers control should be executed under certain parameters, contemplating the employee's privacy rights. For instance, the employer could be considered to be allowed to monitor how much time an employee uses Internet at work, or what sites he/she visits. On the other hand, if the employer would have access to an employee's social network account, it could be considered an infringement of the employee's privacy rights, and therefore, the latter would have an argument to file a complaint against the employer.
Labor Contract Law No. 20,744 ("Ley de Contrato de Trabajo", the "LCL") governs the majority of labor relationships in Argentina. However, as mentioned above, it does not contain a specific rule about the matter.
Considering the boundaries established by company's common practice and case law, there are some rules to observe in order to comply with the normal standards and minimize risks of dispute with the employees.
Consequently, as more fully described below, the employer may be considered allowed to monitor the use of work tools, including time consumed in social network tools or sites, but it may not affect the employee's privacy including, without limitation, accessing the employee's own social networks accounts without authorization.
2. If employers are permitted to monitor social network use by employees at work, what limits and considerations apply, particularly having regard to:
(i) rights of privacy;
In order to reduce the risk of future claims regarding this or any other related issue, common practice recommends signing a document in which the employee acknowledges the power of the employer in order to control the use of social network tools by employees at work.
This practice would minimize risk of future claims by the employee concerning invasion of privacy matters. However, any action will require an analysis of the specific case.
Actually, case law has determined a rule concerning the use of e-mail account that could be applied analogically to the use of social network tools "...if a company does not have a clear policy about the use of this tool, and it fails to advertise the employee that such use would have to be executed exclusively for his/her labor activity and also fails to communicate the company policy about the correct use of those tools, it might be generated in the employee a false privacy expectation..." ("Pereyra, Leandro Ramiro vs. Servicio de Almacén Fiscal Zona Franca y Mandatos S.A.", Labor Court of Appeals, Room VII, 03-27-2003).
Case law has also determined that "...it remains beyond doubt that the access to an informatic system and to Internet granted by the employer to the employee has the characteristics of a work tool, which has to be used only to fulfill labor tasks and not for personal matters..." ("Zilberberg, Gustavo A. vs Total Austral S.A.", Labor Court of Appeals, Room X, 06-10-2005).
Within the last years, case law has been developing an increasing broad concept of work tools, which has included not only an e-mail account, but also information technologies, computers, software, Internet access, Internet use, among others. However, we are not aware of any case in Argentina discussing the use of social network sites in particular.
In addition, case law has validated a dismissal with just cause of an employee that had been using the e-mail account provided by the employer during his work, violating the parameters granted by the company timely in regard of the work tools use. Consequently it was considered that the worker had not been in compliance with his main obligation, which was rendering services in a full manner to the employer ("V.R.I. vs. Vestiditos SA", Labor Court, Tribunal 24, 05-27-2003). Such arguments could apply to an employee devoting a substantial portion of his/her working hours in personal social networks.
Therefore, the employer could be considered to be allowed to control the use of social network at work within the limits explained above (i.e. monitor the time consumed by the employee and sites visited, though not access the employee's own accounts without authorization). However, it is required to advise the employee about the limits of the use of the tools and the power kept by the employer in order to control the correct use thereof.
Usually a document (form) is signed by the employee at the time of commencement of work. However, a more detailed and specific document would provide the employer with more arguments of defense.
(ii) data protection;
From the employee's perspective, it is noteworthy that all of the tools used exclusively for working activities (such as the e-mail account) are included in the broad control of the employer (with the due prior notice mentioned above), and consequently belongs to the company.
In effect, the e-mail account and the information systems (such as computers, software, etc) belong to the company. That rule is established in Section 86 of the LCL, which says that the employee is obliged to maintain the work tools provided by the employer in perfect use conditions.
On the other hand, from the employer's point of view, Law No. 24,766 establishes in Section 1 the right of every individual or company to protect their data under especial circumstances. It says: "Individuals and Companies are entitled to prevent the disclosure to third parties or the trade of information that may be legitimately under their control, without the individual or company consent, and in clear infringement of the fair trade uses...", as long as that information would be considered by the individual or company, as: 1) secret, 2) having commercial value.
Confidentiality regarding the employer's information is also an obligation of the employee pursuant to Section 88 of the LCL which survives the termination of the labor relationship.
Also, case law has determined that "...the conduct evidenced by the employee by communicating to another company a price of the company he was working for at the time, through Messenger, constitutes a violation of loyalty and trust obligations of the employee towards the employer and grants the latter the right to dismiss the employee with just cause..." ("Vidal, Gustavo S. vs Microstar SA", Labor Court of Appeals, Room VIII, 12-10-2007).
The protection of the misuse of the social network tools, in regard of the information the employees may disclose or trade, should be also established and documented in advanced, as mentioned above, to minimize risk of eventual claims or even damage to the company's reputation for such misuse.
In addition, the Data Protection Law No. 25,326 provides certain limitations to deal with, and especially transfer on a cross-border basis, personal information.
The protection of personal data is governed in Argentina by Law No. 25,326, as restated by regulatory Decree No. 1558/2001 ("DPL"). Argentina was regarded by the Commission of the European Communities as providing an adequate level of protection for personal data transferred from the European Community (Decision C -2003- 1731 of 30 June 2003 issued by the Commission of the European Communities).
The provisions of the DPL are applicable to both individuals and legal entities. Personal Data means any kind of information referred to individuals or legal entities.
Sensitive Data has a restrictive regime in Argentina. According to the DPL, Sensitive Data means any personal data revealing any of the following: racial or ethnic origin, political affiliation, religious, moral or philosophic convictions, syndicate activity, or information related to health or sexual orientation. No person may be obliged to supply Sensitive Data. Data related to criminal precedents may be collected solely by the relevant competent authorities, and within the scope of the applicable legislation.
The DPL also provides principles to be considered when treating personal information of the employee, that should be considering when the employer finds itself in situation of monitoring the employee's use of social networks.
(iii) the need for consultation and or consent from employee representative bodies (e.g. works councils, collective agreements);
As mentioned above, the social network control policy should be determined by the employer. The execution of a document (form) in which the employer explains the use of the tools to the employee, remains valid between those parties.
Therefore, we are not aware of any specific rules regarding consent from work councils or bodies under statute, collective agreements or otherwise.
Besides, the power of control of social network use by the employer is a power that the employer has to organize work and production, with the limitations mentioned above.
(iv) the need for individual employee consent;
Regarding the consent of the employee and in spite of no specific regulation on the matter (as mentioned above), the situation could be framed under Section 64 of the LCL, as it establishes: "The employer has sufficient power in order to organize the company, exploitation or establishment economically and technically".
As a consequence of such power, the employee is obliged to comply with the policy determined by the employer, as long as such policy is not less beneficial than general regulations. The only limitation of that power is that it has to be well-designed and be functional in relation to the company's goals.
(v) any other considerations.
As mentioned above, in order to minimize risk of claims or dispute about the use of social network tools in the workplace, and as a result of the lack of legal regulation on the matter, the few "rules" (or common practice standards) designed to frame the situations involved, may be given by case law and by company's practice.
Such standards should be organized by the company under the following parameters:
- The regulation of the use of social network in the workplace;
- To sign documents (also confidentiality agreements, if necessary) with the employees;
- To implement a password system in order to log in to the information tools;
- To train executives, management and employees in general, in the correct use of the information tools;
- To duly specify and be able to prove (even in court) the misuse of the social network tools by an employee.
Whenever a company fulfilled those requirements, it would have better arguments of defense upon a hypothetical claim, if any.
3. Is an employer allowed to prohibit use of social network sites during work: (i) on equipment provided by an employer; (ii) on an employee's own devices (e.g. mobile phones)?
(i) The employer has the power to organize the manner in which the employee renders his/her services. Therefore, if the use of social network tools is not essential for the company's activity, the employer is entitled to prohibit its use during the workday, and on company's computers or work stations
Such limitation would have to be explained by the employer prior to the commencement of work, and it would have to be fully and clearly explained (by a written document), so it would not be misinterpreted by the employee.
Actually, from a practical point of view, the employer could even block access to such sites so that in the event that employees, despite the company's prohibition, attempted to visit such sites, no access was granted. Given, however, that practice is a source of acquired rights in labor terms in Argentina, in the event that a company was granting access and then eliminated such access, claims from employees may not be totally ruled out. However, we are of the opinion that the company would have reasonable arguments of defense, especially if employees granted written consent which might still be disregarded under so called "no waiver of labor rights" principle (Section 12 LCL), but still with arguments of defense from the employer.
(ii) Regarding the control of use of social networks tools on an employee's device, such as mobile phones, it is noteworthy that the employee is obliged to be at full disposal of the employer at all times during the workday. Therefore, the personal use of social network tools without the permission of the employer may represent a distraction or breach of the employee's obligations and it would be sufficient, eventually, to terminate the relationship with just cause. However, while the employer may require full availability during working hours, it may not interfere in the employee's device.
4. Is an employer allowed to block access to social network sites?
According to our comments above, the employer is allowed to implement the system that considers the most effective in order to organize work, provided the employee's privacy is not invaded.
It could be determined by the employer the Internet sites an employee is allowed to visit and the ones excluded. For instance, by saying that the use of Internet would have to be work related, and therefore the misuse of that tool would then be prohibited.
Such limitation could be accomplished by the employer by periodic controls and blocking certain sites.
It would only have to fulfill the general requirements to be valid (prior and duly communication to the employee and control within the limitations mentioned above).
5.To what extent is it permissible to refer to social networking sites for:
(a) taking disciplinary action against an employee;
In order to minimize risk of future claims, to take disciplinary action against an employee the conditions and policy of use of social network tools should be determined in advance.
Thus, the employee would have fewer arguments to argue lack of knowledge about a certain policy established by the company towards the topic.
t is noteworthy that according to case law and statutes of the LCL, the disciplinary action should be proportional to the misconduct of the employee. In fact, Section 242 of the LCL states regarding the dismissal with just cause disposed by the employer that "...the appreciation (of the dismissal) would be made in a prudential manner by the judge, considering the nature of the relationship that arise from a labor contract, according to the statutes of this Law and of the particular case..."
Therefore, the disciplinary action, whether it may be the most severe (dismissal), a warning, or a suspension with no right of perceiving any salaries, it should be imposed under a common sense criteria, and bearing in mind the employee-protective bias of labor courts.
In any case, the employer should be very careful in the application of these kinds of actions, and should gather the necessary proof to demonstrate the actual breach and its right to sanction the employee.
While, as mentioned above, the employer would not be able to enter an employee's social network account without authorization, in certain circumstances and duly notarizing documents, information provided voluntarily by other user could be accepted as evidence on a case-by-case basis.
(b) decisions about recruitment and selection.
No standards rules exist about this issue. It is discretional for companies to refer to social networks on decisions about recruitment and selection. However, an analysis should still be made on a case-by-case basis to analyze the scope of such references with respect the candidate's dignity and to reduce risk of discrimination claims. Additionally, information from social network may not be accurate.
6. To what extent can employers limit use of social network sites of their employees outside of work?
The limitation by the employer on the use of social network tools outside of work could only be related to those tools that would have a connection with the work or that would provide to third parties information about the employer (e.g. an employee who mentions that he works for certain employer or who makes any false or inaccurate reference about his/her employer, superiors or other employees of the company).
In those cases, as in the ones analyzed above, the employer could communicate to the employee the policy of the company towards such tools. It would also have to be in writing and signed in agreement by the employee subject to specific analysis of each case
Such limitations would be related to the image and prestige of the company on the social network used by the employee outside of work, as the company should be able to share that to such extent it has a legitimate interest in the limitation. Otherwise, it could be considered an invasion of the employee's private life. Furthermore, the hierarchy of the employee would be relevant, as it could be considered that the employer's impact of social network is higher regarding employees in higher levels, provided their image, practice and statements are more likely to be associated to the employer's image, practices and statements. Notwithstanding the foregoing, specific assessment of each case is still required prior to taking any action, because, as a general rule, the employer is not entitled to control or influence in any way the worker's use of social network outside work.
7. Is it standard practice for businesses to have policies that deal with social networking?
Over the last years more companies have been developing policies towards the use of social network tools, throughout the work introduced by Human Resources Departments.
Although most of such policies are related to e-mail accounts, computers and Internet in general, some have recently started to identify social network tools.
Also, recently many companies have employees working outside the workplace (usually from their home), in a modality called in Argentina "Teletrabajo", in which case the use of social network depends mainly on tools such as Messenger, Outlook, Skype and even Facebook.
However, no specific laws have been set in order to regulate this matter.
8. What recent legal developments have there been which are relevant to use of social networking sites by employees?
As mentioned above, even though the local employment conditions are showing a growth in the use of social network tools in the workplace, the matter has not been treated by local Labor Law Authorities (whether Government authorities or Workers Unions), and its implementation still is exclusively due to companies policy on the matter and application of general regulations by analogy, whenever possible.
The interpretation of such policies or the lack of them is for now settled by case law on a case-by-case basis, under the parameters explained above.
9. What other legal considerations arise in respect of social network use by employees?
Besides the topics related to the misuse of the social network tools in the workplace lies the question of the company's image and prestige (mentioned above) and the confidentiality of the information that might be disclosed by employees by those means.
Along with the communication of the policy use of the information tools (especially concerning the e-mail account) there should be a specific warning from the employer about the protection of the information provided via e-mail, in order to minimize risk of claims of third parties. Provided the limitations are duly notified in advance and there is evidence of misuse in the workplace during working hours, disciplinary action may be applied after an assessment of each specific case. On the other hand, private use of social network tools by employees is beyond the employee's power of control.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.