Case Summary and Outcome

The Tribunal of Work Appeals of Buenos Aires held that the mandate of a company to install a tracking application in its traveling businesspersons’ phones was unjustified and arbitrary, as it constituted an intrusion into the intimacy and privacy of workers. Software provided by the company tracked the exact GPS location of employees for 24 hours, even before and after the workday. The Court concluded that the measure taken by the employer did not comply with the reasonability and necessity principles of the labor contract act or data protection regulations. According to the Court, the company failed to provide a reasonable explanation for the measure and did not give workers sufficient information on how the information was going to be processed. The Court pointed out that the mobile devices were not restricted to professional activities since the service costs were paid by the salesmen and could be used for personal purposes.

Facts

In August 2012, Fischer S.A. demanded its traveling businesspersons to install tracking software in their phones to monitor which clients they visited. The application, called “Show Position”, provided the employer with the exact location of the phone every moment in real-time using a GPS signal. The company justified the use of the software for better operative and management reasons.

The plaintiffs filed a summary judgment against the company asking to return to the situation before the application was required. They argued that the software constituted an unjustified violation of their privacy rights, considering that the employer would know their location 24 hours a day, regardless of whether they were working or not. The software collected the data location even if the application was not open and, according to them, they did not have knowledge of who processed the data, how it was processed, and for which purposes.

The first instance ruling granted protection to the plaintiffs. The defendant filed a complaint appeal which came before the Tribunal of Work Appeals of Buenos Aires.

Decision Overview

In October 2015 the Judge Balestrini delivered the opinion of the Tribunal.

The main issue before the Court was whether the use of a tracking application by an employer with access to workers’ location for 24 hours entailed an unjustified violation of the latter’s privacy rights.

The plaintiffs filed a petition to return to the situation before August 2012 when the company required them to install the tracking application “Show position” in their phones. They argued that the software implied an unfair intrusion in their private life as now the employer would know, 24 hours a day, what their work and non-work activities were. This situation resulted in their “concern and insecurity, since it [was] information that endanger[ed] their property and their families, while they [did] not know for sure who collect[ed] said data” [p. 2]. Furthermore, according to the working terms, the use of the cellphones was not restricted: Workers were the ones who payed for the phone service and, therefore, it could be used for personal communications and after work hours. Finally, they claimed that they did not know what the purpose or use of having the data was because the company did not provide any reasons for the implementation of this monitoring system.

The defendant answered that the software consisted of a new management and commercial application that sought the optimization of tasks and improved workers’ security. The defendant argued that the devices were provided by the company and the decision to use them after workable hours was exclusive to the workers: “They could abide by turning it on when reaching the first customer and/or turning it off at the end of their last visit, or even between them” [p. 2]. They pointed out that the information was managed by the team chief who maintained various duties in the company and, therefore, he was not able to track every location in real-time. For this reason, the software provided him with periodic reports. Finally, the defendant contended that the plaintiffs’ resistance was due to their intention to hide how many visits they performed during the workday.

The Court framed the discussion on whether the use of the new technology was valid by considering two different legal frameworks. First, whether the employer complied with the requirements that the Labor Contract Law demanded for exercising control powers over employees. Secondly, if the obligation to install the software was respectful of the national and international personal data protection regulations.

The Court found that the implementation of the new tracking software implied an inadmissible intrusion to the plaintiffs’ intimacy. The intrusive measure violated constitutional, legal, and international human rights, as it displayed the workers’ location as soon as the device was turned on. The evidence showed that after the installment of the application, the company had unrestrictive access to the real-time location. In addition, the Court defined geographic location as “highly sensitive information” [p. 3].

Moreover, the plaintiffs did not have certainty on who possessed information about their location at every moment [p. 4].  The fact that the team chief’s workload did not permit him to monitor locations at every moment did not prevent the possibility of it happening. The company’s decision to use daily reports due to productivity or workloads did not preclude real-time surveillance from transpiring. In other words, the plaintiffs were not arguing about the effective visualization of their location after working hours; they were arguing about the sole possibility of it happening.

The Court confirmed that plaintiffs were not tied to a fixed work schedule. Conversely, they could use the mobile phones provided by the company at any moment, without restrictions, and even after they finished their workday. This was reinforced by the fact that the workers were the ones who paid the phone bills. The Court concluded that the flexibility in the workers’ working schedule hindered the defendant’s suggestion to turn on and off the device every time the former was not working or on personal time.

The Court highlighted that it was the defendant who, contradictory, used the words “to make evident” when referring to the capabilities of the new software. According to the Court, this showed that the new mechanism implied the exercise of control over the workers, the quality of the duties, and their execution.

In conclusion, the defendant failed to provide a reasonable explanation for the overlap of its new power to control the performance and the encroachment of workers’ human rights. The defendant neither explained the necessity of the measure, considering its magnitude and extension, nor showed a consent clause allowing it. The Court affirmed that, considering the involved rights, explanations from the defendant required “greater precision and/or degree of detail (…), which would allow understanding not only on the operation of the application but, for example, the treatment and the specific destination of the information obtained, as well as the technical reasons that would prevent the access to the geolocation of the worker at all times (whether they [had] become aware of it in real-time and/or in a deferred way) and the security characteristics of the technological development in question, in terms of their inviolability (access codes, their eventual non-transferability, existence of “firewall” systems, etc)” [p. 7-8].

Nevertheless, the Court was adamant that “[T]he decision adopted [did] not imply ignoring that the employer ha[d] the power to control the work carried out by the workers (even through various technical means), but the truth [was] that such exercise, under no circumstances, [could] be carried out without considering the dignity and the dependent’s privacy” [p. 8].

Finally, the Court confirmed the first instance decision and ordered a return to the work conditions pre-August 2012.