Electronic surveillance in the workplace is a common practice. However, setting certain limits is indispensable to reconcile employers' legitimate interest in defending their property and the fundamental respect for the worker's dignity.
This article addresses both the labor and civil aspects inherent in the electronic surveillance in the workplace.
1. Labor Aspects:
As a rule, employers are responsible for the development of their business activities according to article 2 of the Brazilian Labor Code, and must also follow the principle of in vigilando concerning the employees' activities carried out in the workplace,so that using means of business control to ensure an adequate workplace is part of the employers' power of command ("us variandi").
However, the use of means of control must be mainly directed towards employees' job activities, i.e., production and development of activities for the company. The opinion of jurists also admits the use of means of control for security purposes.
Therefore, from the perspective of the labor aspects, employers may use means of control (for example, microcameras) if such means is used to control work activities related to production and security.
Concerning where such means of control will be installed for security purposes, the devices must necessarily be installed in the areas where the work will be carried out and also the areas frequently accessed not only by the employees but also by persons authorized to enter the premises.
Concerning other areas, that is, those that are for employees' access only, such as restrooms and locker rooms, the position supported by jurists is that the use of means of control may be considered a violation of the principle of protection to employees' privacy (as prescribed under article 5 of the Federal Constitution/88).
Therefore, it is inadvisable for employers to install such means of control in areas used by the employees for essentially private / intimate activities (restrooms and locker rooms, for example).
Employers may install security cameras in other areas such as access areas, corridors, staircases etc., although they are not considered part of the workplace and may be used by any person in addition to the employees.
2. Civil Aspects:
In regard to the civil aspects, a company is allowed to use cameras for security purposes, provided that its employees' right to privacy and intimacy is not violated.
The Brazilian law provides that the owner has the right to use, enjoy and dispose of his personal and real property, as well as tangible and intangible property (comprising therefore equipment, furniture, computers, software, etc.). The Constitution itself guarantees the right to property in article 5, item XXII, subject to its social function.
A company, as a rule, is the owner of all assets that it makes available to its employees to attain the professional objectives for which they have been designed. For such reason, we understand that a company has the right to organize the means of production and lay down rules for the use and maintenance of its assets, including security control rules seeking to inhibit and / or prevent theft.
This does not mean that employers are free to install surveillance cameras at places where, due to their nature, reasonable privacy is expected, such as restrooms and / or locker rooms. The expectation of intimacy and privacy in such places on the part of those who use them is valid and consistent, and the installation of security cameras to monitor such places may be considered violation of the employees' rights of privacy and / or intimacy.
3. Final Conclusions:
Given that the courts' position about this matter has not yet been settled, and even if the company intends to install cameras only in its production area, administration department and offices, we think it convenient (to mitigate risks of questioning by employees) that, before installing them, the company should inform the employees of the installation based on the company's security policy and obtain from them an express statement (under that policy) unequivocally acknowledging the scope of such policy, that is, the installation of such devices for security purposes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.