Heloisa de Alencar Santos
Lawyer at Marcos Martins Advogados
After the Covid-19 pandemic crisis, home office work became a reality all over the world, which led to the need to use new tools to help employees and employers prove the daily hours worked, given issues such as overtime pay, proof of hours on call, meeting targets and other needs.
Faced with this new situation in the labor market, companies began to make remote work conditional on more specific monitoring, 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 UK, 52% of respondents argued that employers should not be able to use webcams for monitoring. Of the total, 28% said that webcam monitoring would only be acceptable in scenarios such as meetings or with clear notification of use.
These measures have led to a conflict between the creators of software capable of monitoring remote work, employers and employees over the limits to the use of these tools and respect for employees’ privacy.
This is due to the fact that there is no settled position on the subject in the labor legal sphere, i.e. there is no majority position in current case law on the legality of these working hours monitoring tools.
However, there is a consensus that employers are authorized to adopt certain procedures to monitor employees.
Following the approval of the new General Personal Data Protection Law (LGPD) (Law 13.709/2018), many precautions must be taken when managing personal data, including that of employees, even during working hours.
First of all, the employee must be aware that he or she is being monitored and what the forms of monitoring are, and this monitoring must not embarrass the employee or deviate from the LGPD.
Although monitoring is a possible reality in the corporate environment, it must be included in the employment contract with details of 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 laid down in Article 5, item X of the Federal Constitution.
Currently, employee monitoring is not covered by any kind of legislation, i.e. there is nothing to regulate or prohibit this type of practice.
Companies that have employees working in the home office or hybrid system must draw up a contract with specific rules, describing the tasks and goals to be carried out, how activities will be monitored, how household expenses will be divided and to whom the employee must report.
Despite the existence of Provisional Measures and Laws regulating home office guidelines, many issues are still being debated in the Courts, which demonstrates the need for case-by-case analysis, as well as specialized legal support, thus avoiding problems with labor lawsuits.
