Article 69 of the Labor Code establishes a series of obligations for employers, including providing their workers with the necessary tools to perform their duties:
Apart from those contained in other articles of this Code, in its Regulations, and in its supplementary or related laws, the obligations of employers are:
d) Timely provide the workers with the tools, instruments and materials necessary to perform the agreed work, supplying them of good quality and replacing them as soon as they cease to be efficient, provided that the employer has consented that the workers do not use their own tools;
For their part, workers have the duty to use the tools provided to them responsibly so that the equipment given to them is kept in optimal condition:
Apart from those contained in other articles of this Code, in its Regulations, and in its supplementary or related laws, the obligations of workers are:
c) To return to the employer any unused materials and keep in good condition the tools and supplies provided for the work; it is understood that they will not be responsible for normal wear and tear or for damage caused by unforeseen events, force majeure, poor quality, or defective construction;
Thus, it is clear that work tools must be provided by the employer unless otherwise agreed, and once given for the performance of their duties, the worker is a custodian of these tools, which they must use responsibly and return when no longer needed.
Currently, employers find themselves needing to provide their workers with cell phones, computers, or technological equipment in general. However, the fact that this equipment is owned by the employer does not mean that the data on said equipment is always the property of the employer.
In this regard, it should be noted that Article 24 of the Political Constitution establishes special protection for communications:
The right to privacy, freedom, and the secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communication of the inhabitants of the Republic are inviolable (…).
In this regard, the Constitutional Chamber has established that although a certain work tool is the property of the employer, this does not entitle the employer to enter and review, among other communications, e-mails or private documents stored in such means, without the consent of the employee.
"From that date, the challenged Minister ordered the backup of all the documentation contained in the computer of the complainant and prevented her from accessing the files and communications stored on its hard drive to ensure the continuity of the functions she performed. The Chamber considers that Article 24 of the Political Constitution has been violated. First, it should be noted that the email and electronic documents stored on the computer used by the complainant, even though it is public property, are protected by the fundamental right to the secrecy of communications, and control of them can never be carried out with guarantees lower than those established by the aforementioned provision. Likewise, the fact that the computer is the property of the Ministry of Foreign Trade does not mean that the complainant has completely renounced the guarantee of the inviolability of private communications, since, as previously indicated, the guarantee of the fundamental right does not depend on the ownership of the medium but is independent of the ownership of the support (In this sense, see the judgment of the European Court of Human Rights of August 24, 1998, No. 872/1997, Lambert v. France). Workers do not renounce their sphere of privacy and data protection by performing a public function; on the contrary, they legitimately expect to find a degree of privacy there, as they develop an important part of their relationships with others. In other words, the fact that an official or employee is provided with equipment for the performance and exercise of their duties – owned by the Administration or employer – does not exclude it from being a support for confidential or personal information covered by the secrecy or reservation of communications and, in general, by the right to privacy. However, this right must be reconciled with other legitimate rights and interests of the employer – whether public or private – in particular, their right to manage with some efficiency and, above all, their right to protect themselves from the responsibility or harm that could arise from the irregular actions of workers or officials." (Judgment 15063-2005 of the Constitutional Chamber of November 1, 2005).
This protection, therefore, only covers the worker's personal information.
"(…) V. Regarding the specific case. This Tribunal has widely recognized the protection that the right to privacy deserves and, specifically, the guarantees offered to safeguard privacy and the inviolability of correspondence derived from it, which directly extends to private communications that may be stored on the equipment provided by the employer to their employees for the performance and exercise of their duties (see, in particular, Judgments Nos. 2005-015063, 2008-015332, and 2018-004835). In this matter, the complainant claims that she was denied access to personal information stored on the computer she used in the performance of her duties, as she believes that personal information cannot be disposed of or deleted without giving the employee a prior opportunity to back it up; and she notes that she needs this information to go to labor court. From the examination of the records, this Chamber finds a clear violation of the complainant's right to privacy. It is demonstrated that, prior to the termination of the employment relationship, the company required the complainant to take her vacation period starting September 25, 2019, and since the service provision would be suspended, she was required to return the computer assigned to her in the company to safeguard the equipment in a locked desk. The key was in the possession of her immediate superior, who left the country on September 28 and has not returned to date. Despite attempts to coordinate access to the equipment after the dismissal on October 2, 2019, including hiring a locksmith on October 18, 2019, it is not demonstrated that the complainant was allowed to access the information she claims. It should be noted that from the moment of termination, it was appropriate to allow access to the complainant's personal information on the mentioned equipment,and if the respondents knew that the equipment was locked, they could have coordinated – from that moment – the locksmith's assistance they later hired. The company must allow supervised and limited access to the personal documents stored on the computer assigned to the complainant, as it is known that the equipment designated for the performance and exercise of employees' duties is also a support for confidential or personal information covered by the secrecy or reservation of communications and, in general, by the right to privacy(see Judgment No. 2006-017380) (…)".(Resolution 23057-2019 of the Constitutional Chamber of November 22, 2019, emphasis not in the original)
Therefore, this does not mean that the worker has an unlimited right to remove any document stored on the company's equipment, so while access to their personal information is guaranteed, the company can and should adopt measures to ensure the protection of confidential data.
"The above cannot be interpreted in such a way that all information within the institutional email, external drives, and computer as work tools – the property of the company – provided by the employer is the exclusive property of the worker and must be facilitated – as the complainant intends – because any information related to the normal activities of the company, such as information related to its clients or sensitive data of the company's activities, cannot be considered personal information covered by Article 24 of the Constitution." (Resolution 15332-2008 of the Constitutional Chamber of October 10, 2008).
Consequently, at the time of termination of the employment relationship, the employee must indicate if he/she has any documents or personal files in any electronic media owned by the company, and the company must provide him/her with the facility to make a copy of them, and then proceed to their subsequent elimination.
n this sense, the employee could facilitate this task if he/she prepares and communicates to the company a list of files that he/she wishes to recover. Alternatively, company personnel could arrange a meeting with the employee to jointly verify the files to be removed from the equipment and, once the personal nature of the files has been verified, to hand them over. Likewise, to avoid possible claims, this practice should be documented by means of a log, in which the consent of the parties is recorded, as well as the files requested and those delivered.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
About the Autor