Recent Brazilian Court Ruling on Employer’s Right to Monitor Versus Employee’s Right to Privacy

In Brazil, there are still ongoing discussions about the extent of an employer’s right to monitor its employees’ use of computers and email, especially in view of potential breaches to employees’ constitutional right to privacy.

The main reason for these debates is the fact that Brazilian labor laws do not specifically address the employer’s right to monitor its employees’ activities — whether electronically or in any other form. In addition, the Brazilian Federal Constitution enacted in 1988 assures the right to privacy to employees in Article 5, item XII. This right to privacy cannot in any way be reduced or harmed by abuses committed by the employer.

With the new technology available today, there are many different forms of controlling and monitoring employees’ activities while they are providing their services, and not all of these forms have been tested in court yet.

Today, the most common forms of control used in Brazil include monitoring computer activities (including internet access and corporate email), installing video cameras in common spaces in the workplace and/or installing GPS in a company’s vehicles (this is particularly common for transportation companies concerned about the theft of cargo).

But even these most common forms of monitoring are still subject to discussion in court.

Superior Labor Court Decision

On September 5, 2012, the Brazilian Superior Labor Court decided a case (case number RR – 183240-61.2003.5.05.0021) affirming the position that the employer’s right to monitor the use of computers and corporate emails made available to its employees is, in reality, restricted.

The court understood that employee use of computers and/or emails may be monitored only when there is an express prohibition in a company’s policies against the personal use of the company’s computers and email by employees.

The court also established that an employer’s directive rights should be weighed against employees’ rights to privacy, intimacy and mail inviolability, which includes electronic mail.

The decision was rendered in the judgment of an appeal against a first level decision that ordered the employer to pay 1.2 million Brazilian Reais (U.S.$581,102) in moral damages for breaking into an employee’s personal locker to collect a company-owned notebook and to collect the personal data entered into the computer, considering this action to be an abuse of the employer’s directive rights. The fact that the locker, while located on the company’s premises, was available for the employee’s personal and private use influenced the decision: It was determined that the employee had an expectation of privacy in the use of the locker, given that the company had no copy of the key to the locker and had to hire a locksmith to perform the opening.

The Brazilian Superior Labor Court upheld the merits of the case and confirmed the first level decision, but agreed to reduce the amount of the damages to 60,000 Brazilian Reais (U.S.$29,055).

Decision in Line with Previous Trend and Case Law

This decision of the Superior Labor Court confirms the previous trend and case law, in the sense that the employer’s right to supervise its business activities can be acceptable, as long as the means used for monitoring are legal and reasonable, and employees are duly informed about them.

One of the conditions for the validity of the employment contract in Brazil is the parties’ actual agreement on its terms. In other words, both the employee and the company must mutually agree on the terms and conditions for the provision of services. This is essential for the contract to be valid.

Being responsible for the business and its results, the company has the prerogative of controlling and regulating the activities performed by its employees. But employees, on the other hand, must be previously aware of the conditions of work, including the type of surveillance they will be subject to. The previous knowledge of contractual conditions, specifically with respect to forms of monitoring of activities, has the purpose of allowing the employer to control its business without breaching the employees’ rights to privacy and intimacy.

In the case of a dispute in court over the validity of the form used to monitor employees’ activities, the judge will determine whether the employees were aware of the monitoring activities, and, in addition, if the form used by the employer to monitor its employees was appropriate and reasonable.

Thus, in order to be protected, employers in Brazil must be very careful about how they monitor their employees’ activities, keeping in mind that there must be a balance between the employer’s right to direct its own business and the employees’ right to privacy.

Leticia Ribeiro C. de Figueiredo is Head of the Labor and Immigration Practice Group of Trench, Rossi e Watanabe, São Paulo, associated with Baker & McKenzie International. She may be contacted at leticia.ribeiro@bakermckenzie.com.