Many of our clients are discovering that the reception of Spam in the e-mail accounts is a real problem, one that is getting worse everyday. This situation has become a highly important issue in the labor scene, since it reduces the productivity of the employees and generates a real risk in the company's computer systems.
The company should monitor only in those specifics situations where there exist good reasons, sufficient to legitimize such activity, for example:
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a given employee is violating the policies and/or rules of the company or an obligation contained in a collective bargaining agreement or an individual employment contract; |
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a given employee may commit a crime or be involved in any illegal activity; |
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the handling or maintenance of Information Systems (Technologies); |
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the Information System is facing a real or potential emergency such as a virus; |
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the monitoring activity is necessary to fulfill a legal obligation or it is ordered by an authority. |
In those cases where the company considers that a specific monitoring activity is needed, it must be done following the least invasive procedure, one directed to the specific risk that the company is trying to avoid, and minimizing the amount of personal information obtained.
It is very important to note that an employee's express consent is needed before the employer starts the implementation of any type of supervision regarding electronic mail and access to Internet, all this in order to avoid incurring in any legal liability.
Likewise, the company should establish internal controls, including suitable training programs, so that the employees know and fulfill the internal policies of supervision of electronic mail and Internet pages, as well as the applicable legal provisions. The employees will have to recognize that any failure to comply with the company's monitoring policies will cause disciplinary actions.
By reason of the foregoing, the employer will be able to argue that the monitoring and supervision systems have been installed in order to prevent and/or sanction any lack of probity and honesty, in terms of article 47 of the FLL. While it is true that the use of this kind of systems is not expressly contemplated in the above-mentioned law, some activities carried out by the employee can be considered causes for termination of the labor relation, as could be, by analogy, if this employee uses the information systems in an improper way or against the company's policies.
Particularly article 47-II FLL refers to the lack of probity of the employee, which has been
defined as the employee's abandonment of the obligations he/she has, acting against them, failing to do what he/she has been instructed to do, or doing the opposite. We can use as an analogy a precedent of the Mexican Supreme Court of Justice that establishes that, if an employee is discovered sleeping, or absent from work notwithstanding that the corresponding card was punched, during working hours, he will be deemed to have incurred the above-mentioned lack of probity. Thus, an employee who is found using the information systems for purposes other than those required in its position could be deemed as incurring in an equivalent cause of dismissal.
| By Baker & McKenzie |
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For further information, please contact us at info.mexico@bakernet.com
All Rights Reserved © Baker & McKenzie Abogados, S.C. Mexico 2003 |
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