Monitoring at work: what can the company do?

Heloisa de Alencar Santos
Lawyer at Marcos Martins Advogados

After the pandemic crisis generated by Covid-19, working from home became a reality around the world, which generated the need to use new tools that helped employees and employers in proving the daily hours worked, considering issues such as payment of overtime, proof of overtime hours, achievement of goals and other needs.

Faced with this new situation in the job market, companies began to make remote work subject to more specific inspection, such as photographing the employee, their work screen and even capturing everything the employee types on the computer keyboard, including using the webcam for monitoring.

According to the Opinium and Prospect survey carried out in the United Kingdom, 52% of respondents argued that employers should not be able to use webcams for monitoring. Of the total, 28% stated that monitoring via webcam would only be acceptable in scenarios such as meetings or with clear notification about use.

These measures have generated conflict between creators of software capable of monitoring remote work, employers and employees, regarding the limits for the use of these tools, and respect for employees’ privacy.

This is due to the fact that there is no pacified understanding on the subject in the labor legal sphere, that is, there is no majority position in current jurisprudence regarding the legality of these work-hour monitoring instruments.

However, there is a consensus that the employer is authorized to adopt some procedures to monitor employees.

After the approval of the new General Personal Data Protection Law – LGPD (Law 13,709/2018), great care must be taken when managing personal data, including that of employees, even within the working day.

First of all, the employee must be aware that he or she is being monitored and the forms of monitoring, and this monitoring cannot embarrass the employee or diverge from the LGPD.

Although monitoring is a possible reality in the corporate environment, it must be present in the employment contract with details on how and where it will be carried out, especially if it involves audio or video surveillance of the employee, in which case extreme caution must be exercised , under penalty of affront to the constitutional principle of inviolability provided for in article 5, item X of the Federal Constitution.

Currently, employee monitoring is not provided for by any type of legislation, that is, there is nothing that regulates or prohibits this type of practice.

Companies that have employees working in a home office or hybrid system must draw up a contract with specific rules, with a description of the tasks and goals to be accomplished, which will be the form of supervision of activities, how household expenses will be divided and to whom the employee should report.

Although there are Provisional Measures and Laws that regulate home office guidelines, many topics are still discussed in the Courts, which demonstrates the need for case-by-case analysis, as well as specialized legal support, thus avoiding problems with actions labor.

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