Precautions to be Taken if Planning to Install Geolocation Apps on your Employees’ Smartphones

Recently, Division IX of the Court of Appeals in Labor Matters issued a decision upholding employees’ right to have their employers refrain from installing geolocation apps on their smartphones (Court of Appeals in Labor matters, Division IX, “Pavolotzki Claudio et al v. Fischer Argentina S.A.”, Case No 48.538/2012, July 10, 2015).

The facts of the case are as follows. Plaintiffs have been non-exclusive traveling salesmen for the defendant Fischer Argentina S.A. (“Fischer) for a long time (9 and 36 years, respectively). During 2012, the defendant installed the app “Show Position” in the smartphones it provided to the plaintiffs. This app has the ability, among other things, to track the plaintiffs’ smartphones 24/7.

The plaintiffs instituted court action seeking to reestablish their working conditions as existing prior to the “Show Position” software being installed on their phones.

The defendant argued that the app allowed both the company and the plaintiffs to maximize their time and work, that although the app had the ability to track the plaintiffs’ phones, they did not carry a real time monitoring system, and that the geolocation of the devices was in fact a security measure that allowed the leader of the team to know their exact location in case of an emergency.

In turn, the plaintiffs said that the app constituted a clear intrusion of their privacy rights as the defendant knew their exact location even when they were off duty.

The court of first instance accepted the plaintiffs’’ claim, with costs payable by Fischer.

On appeal, the Court of Appeals affirmed the lower court’s decision.

In so doing, the Court highlighted the fact that (i) the plaintiffs could use their phones even when they were off duties as the cost of the phone plans was borne by them and not the company; and (ii) the plaintiffs were non-exclusive traveling salesmen for the defendant.

In that connection, the Court concluded that the installation of the app constituted an unjustified intrusion to the plaintiffs’ privacy in violation of the Argentine Constitution, local law and international treaties.

Moreover, the Court also stated that the defendant did not show or explain the reasonableness behind the implementation of the geolocation app as mandated by  Labor Law No. 20,744 and the Argentine Data Protection Law No. 25,326.

More importantly, the Court said that its decision should not be interpreted as a limitation to the employer’s power of control over its employees. However, such control cannot disregard the employees’ dignity and privacy, and the limits established by the Labor Law, the Constitution and the Data Protection Law.

This decision is important as it has become a more common practice for employers to provide employees with smartphones, which may or may not carry geolocation software controlled by the employer.

In order to put the employer in a better position against issues similar to the Pavolotzki case, as well as to minimize other risks of equal or higher relevance, such as those where the cell phone was argued to be part of the employees’ remuneration, it is very important to adequately limit the use of the devices to labor tasks only, carefully draft and review clear policies and internal rules in that regard, and obtain the employees’ written consent to such internal rules, as well as allow the geolocation device to be activated only during business hours, among other measures and practical recommendations that, in our experience, have not guaranteed a result but have contributed to better defense arguments for companies in the event of conflict.