Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
What are the risks for companies in allowing the deliberate use of this application in relations between their employees? How can WhatsApp be controlled in labor relations?
It is true that in this very technological and interconnected age in which we find ourselves, the use of WhatsApp in companies has become commonplace and sometimes even necessary for day-to-day business. So much so that business accounts have been created to contact clients in a more professional way. Even the judiciary has been using this means of communication, for example, to summon lawyers, carry out conciliations, etc.
A simple search of case law shows thatlawsuits based on evidence obtained through this application have increased considerably, which means that employers need to surround themselves with protection mechanisms in order to avoid excesses and possible convictions.
There are countless possibilities for companies to be convicted using evidence extracted from WhatsApp. Examples include the payment of overtime, moral damages, moral harassment, sexual harassment, job deviation, job accumulation, etc.
The creation of work team groups is routine, not least to facilitate communication between the parties, but it is the employer’s obligation to educate and limit use in order to avoid further damage.
But how can we effectively avoid infringements of the law through their use?
In fact, so far, the only way to curb excesses is to educate employees, and this includes the entire chain of command, that indiscriminate use of the app can cause so much discomfort for co-workers that it can become a labor complaint.
This is because the vast majority of employees use their private phones to make these communications, which makes it difficult for the employer to control.
However, bearing in mind that the company is directly responsible for the actions of its employees, it is of the utmost importance that it does its utmost to monitor and even punish employees who do not comply with its guidelines.
It is certain that setting an example is the best way. It is therefore important for the company to instruct managers to avoid using the app outside of workinghours to deal with professional issues, to avoid feedback, to avoid assigning tasks via this route if this is not the formal means of communication used by the company.
For example, if the task doesn’t need to be done at a certain time, then the manager needs to wait for the opportune moment to send the messages. This is because, even if it is not the superior’s intention, some employees feel compelled to reply to messages as soon as they are received, regardless of the time.
Likewise, some superiors demand it and if there is no prompt response, they are charged the next day. This, in addition to moral damage, can generate the obligation to pay overtime in the event of a lawsuit.
You see, the need to be available at all times can generate such discomfort that the employee acquires psychological illnesses due to the pressures that this lack of disconnection can cause, almost a feeling of “slavery” in some more serious cases.
In cases where the use of this means of communication is widespread in the company, it is recommended that a conduct manual be created for the use of the application for professional matters, which can be simple or even more elaborate, depending on the company, and that it be formally presented, with a term signed by the employees, in order to prove the existence of a “policy” and its non-compliance if necessary.
Likewise, it is mandatory that the company creates safe channels so that employees can report non-compliance with these rules without being retaliated against and, together with the employer, can seek a solution to these issues.
If these rules are breached, the company must use the sanctions provided for by law (oral and written warning, suspension, just cause), depending on the seriousness of the case, in order to document and prove in the future, if necessary, that the necessary measures have been taken to remedy the problem.
It should be noted that these measures are only intended to reduce the risk of lawsuits being filed, as well as to create material for the company’s defense in these matters, however, in certain cases, there may still be a conviction.
Thus, even if there is a need for quick feedback, wide availability and “delivery” of employees, it is certain that the company needs to educate everyone so that this use is not harmful and generates unnecessary risks and liabilities.
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
