“Companies now have access to increasingly precise tools for monitoring their employees. At ESADE, we want to bring together lawyers and members of the judiciary to analyse and debate the limits of employee monitoring in the digital age,” commented Anna Ginès, Assistant Professor of Labour Law at ESADE Law School and Director of ESADE’s Institute for Labour Studies, at a recent seminar entitled “Employee Monitoring in the Digital Age”. “Video surveillance, spyware and geolocation systems are widely used by companies,” she explained. “The lack of precise and specific regulation has made this debate necessary.”

Video surveillance, geolocation and biometric control systems

During the seminar, Manuel Luque, Professor of Labour and Social Security Law at Pompeu Fabra University, called this issue “a conflict of constitutional importance” in which “there are various analytical perspectives, since monitoring email is not the same as video surveillance”. He added: “Preventive monitoring – that is, monitoring done before anything happens – is not the same as reactive monitoring. Installing cameras is not the same in terms of labour rights as in terms of criminal rights.” Having a code of conduct is of “radical importance” for companies, Prof. Luque argued.

Ana de la Puebla, Professor of Labour and Social Security Law at the Autonomous University of Madrid, commented: “Data protection has a broader control than privacy protection.” On the topic of geolocation and biometric systems, she observed: “Existing case law shows that a company must inform its workers when it installs these sorts of monitoring systems.” She added: “There are many fundamental rights at stake. The issue is not completely new. Monitoring systems now allow us to reach more and more things – it’s possible to access more sensitive information about employees – so it has been said that the use of these types of systems should be avoided.”

Social networks and digital evidence

“Social networks have become methods of communication,” noted Sara Pose, Judge in the Superior Court of Justice of Catalonia, during the panel discussion at ESADE. She noted that companies’ interest in monitoring employee posts may be related to productivity controls and working hours, the protection of protected customer and supplier data, the reputation of the business, breaches of labour obligations, etc.

Social media monitoring is most evident during the hiring process. “Sixty-two percent of recruiters look at social media: six out of ten companies acknowledge that they have taken candidates’ digital profiles into account, and one in three claims to have rejected a candidate after looking at their social media profile,” explained Ms. Pose. “As long as the profile is public and access is not restricted, companies can access a candidate’s social media, although information such as marital status, family situation, health data, ideology, religion and sexual orientation are especially protected or sensitive.” She added: “You can only collect data that is essential, relevant and not excessive, and which is related to the candidate’s aptitude or capacity to hold the job he or she wants. At present, these rules are not respected, and this is more than questionable. Social networks are the gateway by which companies gain access to questionable information.”

Employment attorney Pere Vidal commented: “Everything we do on social media leaves a trace. We have about 600 decisions in which a direct role is played by social networks, including WhatsApp, which is one of the networks used most often as evidence.” Mr. Vidal added: “Some social networks tend to crop up in labour issues more often than others. Facebook, for example, is the platform most often used to monitor absences, while WhatsApp is used more often for mobbing or employee harassment. There are multiple themes and a multitude of court decisions.” What all these posts have in common, according to Mr. Vidal, is that “electronic devices are the medium” and that “the courts have rejected the notion that this is documentary evidence”.

Finally, Abraham Pasamar, CEO of INCIDE and IT expert witness, commented: “Digital evidence is much more complex, as it is easily altered and highly volatile.” He added: “Any piece of digital evidence must be processed by an IT forensic laboratory.”