July 25 2012
Privacy rights are based on the general terms set forth in the federal Constitution:
"All shall be treated equally before the Law, without distinction of any nature, being guaranteed to Brazilians and foreign citizens resident in Brazil the right to life, freedom, equality, safety and property, at the following terms:… intimacy, private life, honor and image are unbreacheable, the Right to apply for sustained damages in case of breach of said Rights is assured."
As a general rule, employers are not allowed to share employees' data unless expressly authorised to do so. In addition, employers may not track employees' access to websites or check employees' personal emails without due authorisation, in order to respect employees' privacy.
On the other hand, corporate emails are considered by the labour courts to be a working tool, especially as the employer may be deemed liable for the content of any such emails. Thus, the courts have maintained terminations for cause when an employee shared corporate emails with inappropriate content (eg, pornographic material). However, these decisions are based on cases in which the employer had specific policies in place to address the use of emails and the Internet. A written policy is therefore recommended.
The impact of the use of social networks on labour relations is a relatively new subject in labour court decisions. As there is no legislation regulating the use of the Internet in Brazil, decisions tend to analyse the matter in relation to the right to privacy set forth by the federal Constitution.
A recent decision issued by the Superior Labour Court ruled in favour of a termination for cause in a case involving a nurse who had posted several inappropriate photographs of herself with work colleagues on the Orkut social network, disparaging her employer before the general public.(1)
A nurse who worked at the intensive care unit (ICU) of Prontolinda Hospital posted several photographs on Orkut taken both inside the ICU facility and during her journey to work. The photographs depicted intimate moments and inappropriate behaviour with work colleagues while wearing the hospital uniform, and indirectly exposed patients.
As soon as the hospital noticed the photographs, the plaintiff's employment agreement was immediately terminated for cause for bad behaviour.
The plaintiff filed a labour lawsuit before the Labour Court of Olinda in the state of Pernambuco, claiming that her right to privacy had been breached, since her termination was grounded on pictures obtained on a social network with private access. She therefore pleaded for the termination for cause to be converted into termination without just cause, and for the corresponding severance payments to be paid.
In its defence, the hospital alleged that the plaintiff's conduct went against the morality expected of someone who worked at an ICU. In addition, exposing the hospital (by taking pictures while in work uniform and of patients) was disrespectful and inconsistent with the maintenance of the employment relationship. Therefore, the bad conduct necessary to justify a termination for cause was verified.
The Labour Court ruled in favour of the plaintiff, determining the conversion of her termination to without just cause and the effects thereof.
The hospital appealed to the Labour Court of Appeal, which ruled in its favour. It decided that the termination for cause was valid since the plaintiff had published the pictures willingly on a public website; therefore, the employer's knowledge of their content was not deemed a breach of a privacy right.
The plaintiff presented a review of appeal before the Superior Labour Court, which also ruled in favour of the hospital and maintained the termination for cause.
This case indicates that disparagements can be directed to employers, as well as to employees, and that employees' privacy rights will not be upheld to the detriment of the employer's public image. Internal disciplinary rules related to the use of the Internet should therefore be established as a preventative measure and the consequences of the misuse of such measures explained to employees.
In this case, the plaintiff brought to public knowledge the evidence that led to the termination for cause. Employers are not allowed to enquire into candidates' social and personal lives as pre-employment conditions. However, there are no specific regulations governing such pre-employment enquiries.
The employer has a discretionary right to conduct its business activities. Nevertheless, this right must be exercised in accordance with the law in a reasonable way, since the Constitution guarantees the right to intimacy, honour, private life and image. For instance, pre-employment tests and examinations may be performed to the extent they are necessary to assess employees' capabilities for the job position, and employers may conduct the necessary analysis to hire a candidate by requesting information about past employment or verifying whether academic credentials are accurate. However, in all cases a balance must be found between the employer's right to conduct its activity and the employee's right to protect his or her privacy and honour, with analysis being made on an individual basis.
For further information on this topic please contact Ana Paula Mesquita Barros or Carolina Benedet Barreiros Spada at Mesquita Barros Advogados by telephone (+55 11 4502 4144), fax (+55 11 3289 6488) or email (firstname.lastname@example.org or email@example.com).
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Ana Paula Paiva De Mesquita Barros