The Labour Court of Appeals of Buenos Aires, Argentina, issued a new ruling related to labor privacy.

The case started when the company, Fischer Argentina, installed in all the smart phones of a segment of its employees—the viajantes de comercio—a software app called Show Position that allowed the company to monitor the physical location of an employee. The software was monitoring the location of the employee even after the end of the work time in the company, including on weekends.

Several employees sued the company, requesting a ruling declaring the illegality of this practice and to have the conditions of the working relationship free of this surveillance.

The company stated as a defense that the information collected was useful to optimize the performance at work and that its purpose was to avoid duplicates in routes of the vendor. It also added that the employee can turn off the mobile phone when the work time ends to avoid any tracking. Additionally, it hinted that the employee/vendor was avoiding the use of this device because they were not really visiting the clients of the company but doing the sales only via telephone calls.

The first instance court and the court of appeals decided the case in favor of the complainant. The court stated that the employees were allowed to use the mobile phones in their home and outside of work and for personal matters, without any restrictions of usage (only paying the bill of the phone). The court concluded that by installing the software the company was able to access information related to geolocation of the employee even during the time the employee is not working for the company.

According to the court, the installation of the software was an “unlawful intrusion into the employee's privacy infringing the privacy provisions of the Constitution (arts. 19) and several Human Right Treaties protecting privacy.”

The court also mentioned the data protection act (section 5.2) and the exceptions to consent but concludes that the company has not justified that the collection was necessary for the performance of the duties of the workers.

Thus the company was forced to discontinue this practice with respect to plaintiffs.

This is one of the first rulings by a labour court of appeals in Argentina protecting privacy. We expect more developments in the future since the protection of workers’ rights by judges in Argentina is very strong.

photo credit: My Iphone, (1) via photopin (license)