The Spanish Data Protection Agency has just published the guide Data protection and labor relations.
This novelty approved in the recent Royal Decree-Law 9/2021, which modifies the Workers’ Statute and which aims to implement additional transparency to the guarantees of the data protection regulations.
This Royal Decree-Law has one article and two final provisions, the purpose of which is to specify the right to information of the representation of workers in the digitalized work environment, as well as the regulation of the employment relationship in the field of digital delivery platforms.
For this reason, the Spanish Data Protection Agency (AEPD), together with the Ministry of Labor and Social Economy and the employers’ and trade union organizations, has drawn up the guide Data protection and labor relations with the aim of offering a practical tool to help public and private organizations to comply with the legislation.
Regarding the issues of personnel selection and social networks, the AEPD details that individuals are not obliged to allow the company, through HR professionals, to consult their social network profiles (even if the profile is public), neither during the selection process, nor during the execution of the contract. At the same time, the agency indicates that the company is not entitled to ask candidates to friend them in order for them to provide access to the contents of their profiles.
With regard to internal whistleblowing systems, the recording of working hours, the protection of the data of victims of harassment at work or of women survivors of gender-based violence, the AEPD considers that information for both whistleblowers and potential whistleblowers is a priority. Anonymous reporting systems are established and, in case the report is not anonymous, the confidentiality of the complainant’s information must be safeguard and the identification of the complainant must not be prove to the respondent. All this should be control by the HR staff responsible and only they will have access to such data in case of disciplinary proceedings.
Journal of working hours
For mandatory time recording, a more confidential system is recommend, avoiding visibility to other employees. It can only be used for monitoring working time, exclusively.
The works council should be inform of the parameters on which algorithms or artificial intelligence systems are based, including profiling, which may have an impact on employment conditions, access and maintenance of employment.