Written by Josep Conesa
Employment and insolvency lawyer
Organic Law 3/2018, of 5 December, on the Protection of Personal Data and the Guarantee of Digital Rights.
Article 87. Right to privacy and use of digital devices in the workplace.
1. Employees and public servants shall have the right to protection of their privacy when using digital devices made available to them by their employer.
2. The employer may access content generated through employees' use of digital devices provided to them solely for the purpose of monitoring compliance with employment or statutory obligations and ensuring the integrity of those devices.
3. Employers must establish guidelines for the use of digital devices, in all cases respecting the minimum standards for the protection of employees' privacy in accordance with prevailing social norms and rights recognised under the Constitution and applicable legislation. Employee representatives must be involved in drawing up these guidelines.
Where the employer has permitted the use of digital devices for private purposes, any access by the employer to the content of such devices shall require that the authorised uses be precisely specified and that safeguards be put in place to protect employees' privacy — including, where appropriate, the designation of periods during which the devices may be used for private purposes.
Employees must be informed of the usage criteria referred to in this section.
Article 88. Right to digital disconnection in the workplace.
1. Employees and public servants shall have the right to digital disconnection in order to ensure, outside working hours as established by law or by collective agreement, that their rest periods, leave and holidays are respected, as well as their personal and family privacy.
2. The ways in which this right may be exercised shall take into account the nature and purpose of the employment relationship, shall promote the right to reconcile work with personal and family life, and shall be governed by what is established in collective bargaining or, failing that, by what is agreed between the company and employee representatives.
3. The employer, following consultation with employee representatives, shall draw up an internal policy addressed to all employees, including those in managerial positions, setting out the ways in which the right to disconnection may be exercised and the training and awareness-raising measures for staff on the reasonable use of technological tools to mitigate the risk of digital fatigue. In particular, the right to digital disconnection shall be upheld where work is carried out wholly or partly remotely, as well as at the employee's home when technological tools are used for work purposes.
Article 90. Right to privacy in connection with the use of geolocation systems in the workplace.
1. Employers may process data obtained through geolocation systems in order to exercise the employee monitoring functions provided for, respectively, in Article 20.3 of the Workers' Statute and in civil service legislation, provided that such functions are exercised within the applicable legal framework and subject to its inherent limitations.
2. Prior to implementation, employers must expressly, clearly and unambiguously inform employees — or public servants — and, where applicable, their representatives, of the existence and characteristics of these devices. They must also inform them of the possible exercise of their rights of access, rectification, restriction of processing and erasure.
The LOPDGDD as an equality tool in the company
The right to digital disconnection could be used as a work-life balance tool, which may serve as an additional measure alongside the obligations arising from the requirement to establish an Equality Plan.
Company Equality Plans
Please get in touch if you need practical assistance in developing these measures.
