12 most asked questions on Brazil employee monitoring laws

Employee monitoring in Brazil is recognized and permitted for employers who wish to monitor their employees on legitimate work-related grounds.

1. Is employee monitoring legal in Brazil?

Yes. The company has the right to monitor the daily work activities of its employees. That said, this practice should be done without infringing employee privacy or violating any Brazil employee monitoring laws. The right to monitor is backed by Article 5 of Brazil's federal constitution, which provides the right to compensation for property or moral damages or damages to the image.

2. Is it legal to monitor company's computers?

Yes. If the device belongs to the company, the owners (employers) can monitor employees to ensure no misuse. Employers also have the right to ensure that their employees do not use computers to access sites unrelated to work. However, prior knowledge of the monitoring is essential. According to the LGPD (the local data protection law), employees should be expressly notified and informed that there will be control over computer use.

3. Is it legal to monitor employee internet and social media activities?

Yes. The answer is similar to the previous question. In most instances, the employer has the right to ensure that employees use the Internet they have provided for work-related purposes during paid hours. Employers can monitor internet activities such as websites visited, time spent online during working hours, and even limit visits to specific sites. As far as monitoring social media activities is concerned, Brazil employee monitoring laws are yet to regulate companies' social media monitoring. Still, employees should understand that they must comply if company policies prohibit social media use during working hours.

4. Is it legal to monitor screen contents and keystrokes?

Yes. Employers can use tools that monitor screen contents and keystrokes on a work computer. A general guideline is that employees should note is that every activity carried out on a work computer can be accessed by their employer, mostly where clear and documented policies have been communicated.

5. Is it legal to monitor email content?

Yes, if this is a company corporate email account, they are obligated to prohibit the use of corporate emails for personal use. Before doing so, the company must clearly inform its employees about the monitoring of the email. Brazil employee monitoring laws oblige the employers to do so. In other words, clear policies that indicate that corporate emails are solely for professional use should be provided. This will enable the employer to take appropriate actions against its employees if corporate emails are used for purposes other than corporate use.

6. Is it legal to monitor or record phone conversations?

Yes. For example, Brazil's laws allow some sectors, call center companies, to monitor or record phone conversations with customers as a regulatory requirement to support fair treatment of customers and good conduct. This is also supported by Decree No. 6,523 of July 31, 2008, which requires these services to record their calls. However, in a conventional office, this could be a bit controversial. Listening to conversations without the employee's awareness could breach confidentiality in item XII of Article 5 of the Federal Constitution. The same applies to the personal data sharing rules. Even the government efforts to make telecommunication operators provide the list of names, addresses and phone numbers of their customers were not successful. In April 2020, the Supreme Federal Court of Brazil suspended the Provisional Measure, as it violated the basic human rights for privacy. Brazil employee monitoring laws request companies to ensure that the monitoring process does not infringe on the fundamental right of the employee.

7. Is it legal to use video monitoring systems in the workplace?

Yes. In Brazil, video surveillance systems in the workplace are common practice. Some employees use video monitoring systems for legitimate business purposes. However, limitations laid down in the constitution must be respected. Installing video monitoring systems in environments that invade employee's privacy may lead to the violation of Item X of Article 5 of Brazil's Federal Constitution. This law states that every individual has the right to privacy, private life, honor, and image are inviolable, and the right to compensation for property or moral damages where such infringement is committed. Brazil employee monitoring laws imply certain precautions should be taken when installing a video monitoring system:

• Notifying employees that their work environment is being monitored through a video system.
• Explaining the purpose of the monitoring to the employees.
• Installing cameras only in work areas, not in environments that could invade privacy (e.g., restrooms, changing rooms, bathrooms).
• Avoiding the use of the video system for discriminatory purposes. i.e., to monitor only one sector of the company or a specific employee.
• Taking appropriate measures to store monitored.
• Ensuring who has access to the monitored data does not share information with third parties.

Aside from video surveillance systems, there are various employee-friendly options to consider if the primary goal is to monitor overall productivity and ensure that company resources are properly utilized. Employee productivity monitoring software is a great way to balance the benefits of monitoring with the risks of invading employees' privacy.

8. Is it legal to monitor private messages and email content?

Yes. As long as the company has clear policies prohibiting sending and receiving private messages and emails on company devices during and after working hours. In that case, it is justified to monitor activities such as sending or receiving private messages or emails. Brazil employee monitoring laws allow it. Again, the keyword here is well-defined policies. Monitoring without ensuring that the employee has been adequately notified could lead to large damages payments.

9. Is it legal to monitor employees' personal devices?

Yes. It is worth noting that if work activities are performed on a personal device, the employee is accountable to the employer during designated working hours. The employer can restrict use during working hours if they wish to. If the employer does this type of monitoring, transparency is required, and measures should be taken to ensure that they do not interfere with their privacy. Brazil laws require the employer to properly inform the employee of what information they intend to collect and how they intend to use it.

10. Is it legal to monitor employees' personal computers?

Yes, The answer is similar to the one above. The practice became possible and smooth after the regulation 13874/2019 came into force. It was called an "Economic Freedom Law", reducing the level of bureaucracy in Brazil. Since its enactment, the company managers can negotiate their working hours and conditions directly with the employees. They are entitled to sign individual agreements with every given worker (instead of collective agreements). However, small companies with less than 20 employees are free to imply working time monitoring or avoid it. If the employee performs work duties on a personal computer, monitoring such devices may serve a legitimate interest in protecting business information. However, it is considered unlawful if such monitoring also captures data relating to the employee's private life. Appropriate measures should be taken to distinguish between personal and business use of the device, and policies should be created and communicated to the employees.

11. Is it required to inform employees of the monitoring?

Yes. Under Brazilian laws, prior notice of the monitoring is fundamental. Companies are required to inform their employees and discuss any monitoring process issues before monitoring. Employees must be aware of the monitoring, the purposes for which personal data are to be collected, and any other information necessary to ensure fair processing.

12. Employee monitoring policy - mandatory or not?

Yes. Companies must create appropriate documentation such as monitoring policies, handbooks, etc. that lay down clear rules for company property use. The data obtained through the monitoring tools must also be relevant, necessary, not excessive, and comply with the data protection standards. With a comprehensive and easily accessible workplace monitoring policy, employees will be aware of the monitoring. Following the Brazil employee monitoring laws, all these must be included in the policies:

• The nature and extent of the monitoring process.
• The reason for the monitoring.
• The impact of the monitoring on the business.
• How confidential or sensitive information is handled. (If any is taken)
• Point out acceptable and unacceptable uses.
• Employers must ensure that their monitoring policies are compliant with legal requirements, including the data protection law.

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Are there Brazilian laws that protect employee workplace privacy?

Yes. Items X and XII of Article 5 of the Federal Constitution (CRFB/1988) intentionally protect the inviolability of intimacy, privacy, honor, image, and secrecy. The federal constitution of Brazil asserts that everyone has the right to private life and the fundamental rights of freedom. According to Article 23 of the Universal Declaration of Human Rights, everyone has the right to work, free choice of job, fair and favorable working conditions, and protection against unemployment. The General Data Protection Law (LGPD), which came into force on September 18, 2020, also creates extensive requirements, regulates, and provides penalties for organizations handling personal and sensitive data. The relevant provisions to the data protection law are applicable from the 1st of August, 2021. They balance out the rights of individual data subjects and their controllers. Thus, every company or organization should appoint a qualified Data Protection Officer, responsible for the records maintenance. It makes it possible to keep the data safe from loss or destruction.

Is there professional lawyers’ advice on monitoring?

Professional lawyers advise that there must be transparency around employee monitoring. Brazil employee monitoring laws stipulate that all employees subject to monitoring must be informed of the following:

• The fact that they are being monitored.
• The purpose of monitoring.
• The relevant legitimate reason for the monitoring.
• How long the collected information will be retained.
• Employee rights with respect to monitoring.
• The right to communicate where employees have any concerns about monitoring.

Companies should issue special documents such as policies, handbooks, consent forms, etc. to raise awareness of the monitoring.

What is the bottom line?

It is crucial to find common ground when implementing employee monitoring processes to balance the employer's business interests and employees' privacy. To legitimately implement the monitoring process, transparency and prior notification should be considered. Applying a non-invasive employee monitoring software assists you in improving employee productivity and attendance without any legal issues. Disclaimer The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.