New Right to Object to Dangerous Tasks and Restrictions on Video Monitoring

The Argentine National Employment Law (NEL) was amended at the end of 2017 to provide greater protection for employees in the area of health and safety, and also to introduce restrictions on an employer’s ability to conduct video surveillance in the workforce.

On December 15, 2016, two relevant amendments to the NEL entered into force:

Employer’s Power to Monitor Employees (Section 71 of the NEL)

An employer wishing to undertake close circuit television or physical surveillance of employees will now need to inform those employees about the monitoring system. This is in addition to the obligation to notify the Ministry of Labor of the monitoring, an obligation which has existed for some time. An employer will need to meet the following conditions:

• The surveillance of the employees must be appropriate and balanced;
• Cameras or any other means of control must be visible;
• Cameras must be only in working places (excluding those places the company may have for recreation, toilets, or any other private places);
• The employer is not allowed to broadcast filming records;
• Confidentiality and respect to employees’ dignity must always be observed; and
• Recordings must be limited to images—voice records are not allowed.

It would also be prudent to inform any union about the implementation of surveillance, although this is not an absolute requirement.

The Ministry of Labor may perform inspections and fines may be imposed in cases of non-compliance. 

Employer’s Duty of Safety (Section 75 of the NEL)

The scope of the employer’s duty of safety has been extended by giving employees the right to refuse to perform dangerous tasks without risk of incurring a drop in pay. This principle covers both physical dangers and tasks that could cause physiological harm, such as those exposing an employee to harassment.

In practical terms, protecting physiological health means: i) protection of employees from a hostile labor environment and from discrimination, abuse, or harassment; ii) provision of support in cases of addictions; iii) a good working environment; and iv) since December 2016, an employee’s right to refuse to perform certain tasks—without reduction in salary—if such activity represents a risk to psycho-physical security.

Comment

Many companies, including in particular multinationals, were already informing employees of the existence of workplace monitoring systems. All employers wishing to use surveillance systems will now have to do so.

As for the right to refuse to perform dangerous tasks—uncertainty exists as to exactly what would be considered a “dangerous” task and whether the employee will need to provide evidence about the hazard in question. It is likely we can expect to see cases where employees refuse to work with a particular manager, for example. Judges will have to interpret the new provisions on a case-by-case basis to decide how to apply Argentine law—known to be protective of employees—to such cases.

Written by Mercedes Balado Bevilacqua and Cecilia Acosta of MBB Balado Bevilacqua Abogados and Roger James of Ogletree Deakins