trends legal magazine

Employment Law No 7

Argentina | Barreiro. Oliva. De Luca. Jaca. Nicastro

ARGENTINA | Brief commentary on sensitive information and job interviews in Argentina

In this article we will make brief comments on the scope and practices regarding the treatment of information in the context of employment relations.

Do I need consent to process employee data?

a) Consent to data processing

The Personal Data Protection Act, (Act No. 25,326) establishes that the consent of the data subject is required to process personal data in a lawful, fair, and legitimate way (Section 5 of the Act).

However, the data subject’s consent is not required when the data arises from a contractual, scientific, professional, or work relationship with the data subject, and when such data are required for the development or fulfilment of such relationships (Section 5.2.d. of the Act).

In accordance with Data Protection Act, the employer may process personal data of its employees without the employees’ consent when the data have been obtained because of the employment relationship.

Contrary to this, the Employment Contract Act establishes that the employee must give consent for the employer to access his personal data or information.

In conclusion, the employer will be able to access the employee’s personal data if this is included and informed at the time of the employment contract.

It is advisable that companies should notify their employees that their activities are going to be monitored, which means accessing to their personal data.

Additionally, employees, by accepting the job offer, are consenting to the processing of their data.

b) Data transfer

Personal data cannot be shared with third parties without the authorization of the data owner, that is, the employee. The employer needs the employee’s consent in writing before sharing or transferring the employee’s data.

Transfer of personal data is subject to specific requirements. Transfer of data to countries with a lower level of security is forbidden, except when the employee gives his consent. In this case, the employer should provide the employee with information about the purpose of such transfer.

Employers have a duty of confidentiality to their employees, even after the termination of employment relationship, except when: (i) a court issues an order requiring the data; (ii) or because of health issues.

What are the privacy and data protection issues inherent in alcohol /drug testing?

a) Clash of Rights

A clash or rights is what seems to be taking place in these cases: whether the right to privacy of employees prevails over the employer’s management, within the framework of the good faith that must prevail in labour relations.

The Mandatory Medical Program (“PMO”, after its acronym in Spanish) recognizes alcoholism and drug addiction as pathologies that must be covered by healthcare insurance agents (i.e., public and private healthcare insurance providers). Section 4 of Law No. 26,657 grants people suffering from addiction the same rights and guarantees as those living with a mental illness.

Argentine Supreme Court considers that the right to privacy “prevails against any interference” which might be “arbitrary” or “abusive” in the private life of those affected (Section 75 (22) of Argentine Constitution; Section 22 of the Universal Declaration of Human Rights; Section 11 (2) of the American Convention on Human Rights and 1071 bis Civil Code). It is in this context where it must be considered whether the “interference” from the employer violates the privacy of the employee or not.

b) There is no regulation in Argentina concerning this matter.

Nevertheless, is our understanding that employers cannot request applicants to undergo medical examinations to detect consumption of alcohol or drugs. Except, when applicants may endanger the health of other people (i.e., bus drivers, police, doctors).

In the event that a substance abuse examination must be carried out during the employment relationship -because it is regulated in the company’s policy and the employee has consented to it- the test results cannot be used to alter the employment relationship but to protect the health of the employee and others.

Additionally, the Data Protection Law establishes that no person can be compelled to share sensitive data. Data can be collected and subjected to treatment only in case of general interest authorized by law, or in case of statistical or scientific purposes, provided data owners are not identified.

This means that according to law, no sensitive data can be collected or processed.

Employers will face two difficulties in requesting employees to undergo pre-employment exams and periodic exams. The first is the difficulty of justifying the practical importance of taking the exams. The second is that, upon verification of a positive test result, any decision by the company towards the affected employee will be considered a discriminatory act.

It is therefore not advisable to request medical exams before or during the employment relationship, unless when protecting the health of third parties.

How can I legitimately monitor employees´ email, internet usage and social media?

There is no regulation in Argentina concerning the control of companies over their employee’s correspondence, emails, usage of internet and social networks.
Thus, there exists a conflict between the right of the employer to direct the business, and employee´s right to privacy.

The Employment Contract Act grants the employer the power to manage, control and organize the company.

A corporate policy on electronic communications, usage of internet and social media in the workplace could be considered as part of the employer’s power of management and organization of the company.

The employer may control the use that employees make of the computers provided by the company and their adequate use for the tasks assigned to the employees. The employer may monitor access to internet sites, social networks, and the use of corporate email by employees.

In any case, for the employer to be able to exercise this power of control without violating the employee’s right to privacy, the employer must ensure that the employee does not have an expectation of privacy with the tools provided by the company.

Before the employee starts using the equipment provided by the company, the employer must notify the employee that the equipment must be used only for working purposes, and that the company will supervise the correct use of the equipment.

A recommended strategy is to develop a company policy for the correct use of computer tools, internet access, emails, and instant messaging and to determine the control and monitoring the process that the company will use to ensure that employees comply with the policy.

What are the limits of using artificial intelligence in employment?

There is no regulation in Argentina regarding artificial intelligence in employment.

Therefore, the general principles of law apply, such as employee dignity, employee privacy, and good faith in the use of artificial intelligence information in labour relations.

What are the data protection issues in whistleblowing?

There is no regulation in Argentina regarding this matter.

Nevertheless, the Employment Contract Act grants the employer the power to manage, control and organize the company. A corporate policy for the prevention of irregularities could be considered as part of the employer’s power of management and organization of the company.

This policy will establish the procedures and criteria for action in the event of irregularities in the company.

This policy shall indicate who will be in charge of conducting the internal investigation to clarify the reported facts.

These persons will have the duty of confidentiality when receiving the information and will also observe the duty of not disclosing information regarding the content of the complaints filed during the investigation process and/or when it has been closed.

They may disclose only such information when it’s necessary to guarantee the right of defense of the person accused of being responsible for the alleged facts. Also, they may disclose the information to directors, employees, agents, and advisors of the parties who need this information. Directors, employees, agents, and advisors of the parties will also be requested to respect the duty of confidentiality.

The duty of confidentiality may finish with a duly notified court order, or with an authorization from of all the parties involved in the process.

Written by:

Pablo Nicastro, Partner

Clara Fazio, Associate

Article from – TRENDS Employment Law No 7

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