1.- OBJECTIVE AND SCOPE

The new one LOPD-GDD 3/2018 in its “Thirteenth Final Provision. Amendment to the consolidated text of the Workers’ Statute Law.” has introduced a New Article 20 bis in the Workers' Statute, which reads: 

“Article 20 bis. Workers' rights to privacy in relation to the digital environment and to disconnection. Workers have the right to privacy in the use of digital devices made available to them by the employer, to digital disconnection and to privacy regarding the use of video surveillance and geolocation devices under the terms established in current legislation on the protection of personal data and the guarantee of digital rights.”

Likewise, in the aforementioned organic law a new TITLE X is introduced, regarding the “Guarantee of Digital Rights”, in which we find the following normative development that affects the labor relations of the entity and which are detailed below:

Article 87. Right to privacy and use of digital devices in the workplace.

1. Workers and public employees shall have the right to the protection of their privacy when using digital devices made available to them by their employer.

2. The employer may access the content derived from the use of digital media provided to employees for the sole purpose of monitoring compliance with labour or statutory obligations and ensuring the integrity of said devices.

Article 88. Right to digital disconnection in the workplace.

1. Workers and public employees shall have the right to digital disconnection in order to guarantee, outside of legally or conventionally established working hours, respect for their rest time, permits and vacations, as well as their personal and family privacy.

2. The methods of exercising this right will depend on the nature and purpose of the employment relationship, will promote the right to reconcile work activity and personal and family life, and will be subject to the provisions of collective bargaining or, failing that, to the agreement between the company and the workers' representatives.

3. The employer, after hearing from the workers' representatives, shall draw up an internal policy for workers, including those in management positions, defining the methods for exercising the right to disconnect and the training and awareness-raising actions for staff on the reasonable use of technological tools to avoid the risk of computer fatigue. In particular, the right to digital disconnection shall be preserved in cases where work is carried out remotely or partially, as well as in the employee's home in connection with the use of technological tools for work purposes.

Article 89. Right to privacy with regard to the use of video surveillance and sound recording devices in the workplace.

1. Employers may process images obtained through camera or video camera systems for the purposes of monitoring workers or public employees as provided for in Article 20.3 of the Workers' Statute and in civil service legislation, respectively, provided that these functions are exercised within their legal framework and within the limits inherent thereto. Employers must inform workers or public employees and, where appropriate, their representatives, in advance and in an express, clear and concise manner about this measure.

In the event that the flagrant commission of an unlawful act by workers or public employees has been detected, the duty to inform will be deemed to have been fulfilled when at least the device referred to in article 22.4 of this organic law exists. (“The duty to inform provided for in article 12 of Regulation (EU) 2016/679 will be deemed to have been fulfilled by placing an informative device in a sufficiently visible place identifying, at least, the existence of the treatment, the identity of the person responsible and the possibility of exercising the rights provided for in articles 15 to 22 of Regulation (EU) 2016/679. A connection code or internet address for this information may also be included in the informative device. In any case, the person responsible for the treatment must keep the information referred to in the aforementioned regulation available to those affected.”)

2. Under no circumstances will the installation of sound recording or video surveillance systems be permitted in places intended for the rest or recreation of workers or public employees, such as changing rooms, toilets, dining rooms and the like.

3. The use of systems similar to those referred to in the previous sections for recording sounds in the workplace will only be permitted when the risks to the safety of facilities, property and people arising from the activity carried out in the workplace are significant and always respecting the principle of proportionality, the principle of minimum intervention and the guarantees provided for in the previous sections. The deletion of sounds retained by these recording systems will be carried out in accordance with the provisions of section 3 of article 22 of this law.

Article 90. Right to privacy regarding the use of geolocation systems in the workplace.

1. Employers may process data obtained through geolocation systems for the exercise of the functions of control of workers or public employees provided for, respectively, in article 20.3 of the Workers' Statute and in the civil service legislation, provided that these functions are exercised within their legal framework and with the limits inherent to it.

2. Employers must, in advance, expressly, clearly and unequivocally inform workers or public employees and, where appropriate, their representatives, about the existence and characteristics of these mechanisms. They must also inform them about the possible exercise of the rights of access, rectification, limitation of processing and deletion.

Article 91. Digital rights in collective bargaining.

Collective agreements may establish additional guarantees of rights and freedoms related to the processing of employees' personal data and the safeguarding of digital rights in the workplace.

On the other hand, Royal Decree-Law 8/2019, of March 8, on urgent measures for social protection and the fight against job insecurity in the working day, approved by Congress,  modifies article 34 of the Workers' Statute,  establishing the company's duty to guarantee the daily record of the working day, which must include the specific start and end time of the working day of each worker, without prejudice to the existing flexible hours.

2.- MEASURES TO BE ADOPTED

PLT-30-01 – Corporate technological devices

Technological devices (smartphones, tablets, laptops, etc.) and their contents made available to employees may be reviewed by the employer to verify their correct use. The employer may access the employee's electronic communications (email and Internet) and the contents derived from the use of corporate devices, for the purposes of monitoring compliance with general work obligations, as well as guaranteeing the security and integrity of information and corporate computer systems and networks, and preventing liabilities for the company that may arise from illegal actions (such as the installation and use of software without the proper license).

PLT-30-02 – Messages and calls outside of working hours

In general, employees are not expected or encouraged to continue checking, much less answering, possible messages or calls related to their work after the agreed work day has ended or during vacation periods.

Exceptionally, and when the function performed by the employee makes it advisable or convenient for him/her to check the corporate telephone or corporate email or corporate messaging application, once the normal hours of his/her ordinary working day have elapsed, a written agreement will be signed in which a specific time or time slot will be set during which he/she must check that no emergency has arisen. An urgent situation will be understood, for example, as one that can usually be resolved by means of a clear instruction or directive, which can be transmitted by means of a call or short message, and which avoids a foreseeable or probable significantly greater involvement of corporate resources later on, if it is not tackled or resolved early.

PLT-30-03 – Extension of the working day

Situations of extended working hours due to special circumstances will be compensated in cash or in free time with prior approval from Management or the HR Department in accordance with the normally applicable legal regulations.

PLT-30-04 – Geolocation 

Geolocation devices for workers, including vehicles and electronic devices that incorporate such functionality, will be deactivated by the worker outside of working hours.

PLT-30-05 – Work Day Record

The employer has made available to the worker a system for recording working hours (ROL) in accordance with the provisions of article 34.9 of the Workers' Statute. This record includes the specific start and end times of the working day. The documentation generated by this record will be kept for at least 4 years, and made available to any worker who requests it.  

3.- ACCEPTANCE AND IMPLEMENTATION

The company POLLENTIA TRADE SL approves this policy and orders its immediate compliance and periodic supervision.