Social Networks At The Workplace

  1. Are employers permitted to monitor social network use (such as Facebook or Twitter) by employees at work?

    The use of social network tools in Argentina in the workplace is not regulated under a specific law and the parameters and rules of its use are usually granted by the employers and the particular case law. Nevertheless it has become a raising concern for the employers.

    In that context, we have an opinion on the subject based on general guidelines and analogy from monitoring of e-mail accounts and electronic systems, as well as general powers of control and organization by the employer.

    The employers control should be executed under certain parameters, contemplating the employee's privacy rights. For instance, the employer could be considered to be allowed to monitor how much time an employee uses Internet at work, or what sites he/she visits. On the other hand, if the employer would have access to an employee's social network account, it could be considered an infringement of the employee's privacy rights, and therefore, the latter would have an argument to file a complaint against the employer.

    Labor Contract Law No. 20,744 ("Ley de Contrato de Trabajo", the "LCL") governs the majority of labor relationships in Argentina. However, as mentioned above, it does not contain a specific rule about the matter.

    Considering the boundaries established by company's common practice and case law, there are some rules to observe in order to comply with the normal standards and minimize risks of dispute with the employees.

    Consequently, as more fully described below, the employer may be considered allowed to monitor the use of work tools, including time consumed in social network tools or sites, but it may not affect the employee's privacy including, without limitation, accessing the employee's own social networks accounts without authorization.

  2. If employers are permitted to monitor social network use by employees at work, what limits and considerations apply, particularly having regard to:

    (i) rights of privacy;

    Regarding the privacy policy of social network use by employees, the limits of the employer control should be previously established.

    In order to reduce the risk of future claims regarding this or any other related issue, common practice recommends signing a document in which the employee acknowledges the power of the employer in order to control the use of social network tools by employees at work.

    This practice would minimize risk of future claims by the employee concerning invasion of privacy matters. However, any action will require an analysis of the specific case.

    Actually, case law has determined a rule concerning the use of e-mail account that could be applied analogically to the use of social network tools "...if a company does not have a clear policy about the use of this tool, and it fails to advertise the employee that such use would have to be executed exclusively for his/her labor activity and also fails to communicate the company policy about the correct use of those tools, it might be generated in the employee a false privacy expectation..." ("Pereyra, Leandro Ramiro vs. Servicio de Almacén Fiscal Zona Franca y Mandatos S.A.", Labor Court of Appeals, Room VII, 03-27-2003).

    Case law has also determined that "...it remains beyond doubt that the access to an informatic system and to Internet granted by the employer to the employee has the characteristics of a work tool, which has to be used only to fulfill labor tasks and not for personal matters..." ("Zilberberg, Gustavo A. vs Total Austral S.A.", Labor Court of Appeals, Room X, 06-10-2005).

    Within the last years, case law has been developing an increasing broad concept of work tools, which has included not only an e-mail account, but also information technologies, computers, software, Internet access, Internet use, among others. However, we are not aware of any case in Argentina discussing the use of social network sites in particular.

    In addition, case law has validated a dismissal with just cause of an employee that had been using the e-mail account provided by the employer during his work, violating the parameters granted by the company timely in regard of the work tools use. Consequently it was considered that the worker had not been in compliance with his main obligation, which was rendering services in a full manner to the employer ("V.R.I. vs. Vestiditos SA", Labor Court, Tribunal...

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