The supply of electronic tools to employees for business use is becoming a source of conflict in labour relations.
Employers are anxious to protect their computer networks from hackers, who develop viruses to target computers and their networks. Email facilities provided to employees can result in serious damage to employers' computer systems if attached files facilitate the propagation of viruses or malicious scripts. Consequently, employers increasingly monitor the use of employees' electronic communications to detect emails that:
- pose security questions;
- could cause server overloading;
- problems/threats which relate to personal matters; or
- disclose confidential company information to third parties.
Monitoring is performed through the use of computer programs which filter and register websites that are visited by employees and words contained in employees' emails. For example, programs search for words such as 'confidential', 'secret' and 'company property'. Companies also monitor attachments ending in '.exe', which may damage their network.
In response to high levels of monitoring, employees are invoking their rights to privacy and inviolability, which are guaranteed by the Brazilian Constitution. The question thus arises: to what extent do employers have the right to access or review the use of electronic communications without violating their employees' constitutional rights?
The Regional Labor Court recently handed down the first decision of a higher court on this issue in favour of the employer. The court allowed the dismissal of an employee who used company email to send pornographic photographs via the Internet. Reversing the decision of the lower court, the Regional Labor Court rejected the argument that the employee's privacy had been violated, holding that the email address used was not private, but was rather a work tool.
Another pending case constitutes the first action to be brought by an email recipient. The plaintiff is requesting indemnification for pain and suffering caused by the receipt of an email with an allegedly racist content, sent by an employee of a multinational company. The company appears as the defendant in the action because the employee sent the message via his company email address.
Brazilian legislation provides that companies may be held answerable for the actions of their employees so that an employee is regarded as representing his or her employer when using the company's email system.
In order to avoid litigation in the future, employers are choosing to implement specific policies for employee email use, such as codes of conduct. Generally, the following guidelines apply:
- Email is a work tool provided by employers exclusively for working purposes;
- Email monitoring is designed to improve the operation of employers' networks and protect them from contamination by computer viruses;
- Email monitoring should be conducted the knowledge of employees and third-party users; and
- There are no specific regulations concerning methods of legal control to be applied by employers to employee emails.
Any violation of a code of conduct may constitute an act of indiscipline and may justify termination of the employment contract. Judging by the aforementioned ruling, the Regional Labor Court seems likely to accept this interpretation.
For further information on this topic please contact Ricardo Barretto or Fernanda Bottura Casella at Barretto Ferreira, Kujawski, Brancher e Gonçalves – Sociedade de Advogados by telephone (+55 11 3066 5999) or by fax (+55 11 3167 4735) or by email ([email protected] or [email protected]).