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  5. WhatsApp Does your boss fry you on WhatsApp? Denounce it: the right to digital disconnection is included in the new LOPD

WhatsApp Does your boss fry you on WhatsApp? Denounce it: the right to digital disconnection is included in the new LOPD



WhatsApp Does your boss fry you on WhatsApp? Denounce it: the right to digital disconnection is included in the new LOPD


We have talked a lot in recent months about the controversy generated by the new Organic Law on Data Protection (LOPD), by which political parties are going to become the “Big Brother” of their citizens. And is that the new measure, which is pending appeal by the TC, allows politicians, through electronic devices, send electoral propaganda to citizens without prior authorization.

But something good has to have had to have the new regulations. And it’s the right to digital disconnection in the workplace, as stated in article 88. What does it mean? Very simple: your boss cannot bother you on WhatsApp, for example, when you have already left work.

Nor do they call you continuously or send you emails.

«Changes in the norm expressly contemplate abuse situations that were produced in many companies and that could prevent the worker from resting, ”he explains to ABC Sergio Carrasco, expert in digital law at Fase Consulting. “Although there were already boundaries associated with the day itself, the reality is that it was not strange to find companies that maintained and maintain a continuous communication with your workers through channels such as WhatsApp, demanding a response or confirmation of reading the messages themselves, “he explains.

The right to digital disconnection was approved in September 2018 in the Congress of Deputies. «Workers and public employees will have the right to digital disconnection in order to to guarantee, outside the legal or conventionally established work time, respect for their time off, leave and vacations, as well as their personal and family privacy», Says the norm. And it is that «the establishment of the limits to the working day and the obligations of the workers, sought to allow a rest that has been negatively affected by the entry of widely used devices such as mobiles, which further facilitates continuous communication ”, recalls Carrasco.

“The modalities of exercise of this right will attend to the nature and purpose of the labor relationship, will enhance the right to reconcile work activity and personal and family life”

«The modalities of exercise of this right will attend to the nature and object of the labor relationship, will enhance the right to reconcile work activity and personal and family life and will be subject to the provisions of collective bargaining or, failing that , as agreed between the company and the workers’ representatives ”, the law continues. Although the expert reviews: «It is important to bear in mind that You have to differentiate between who they contact from the company with which you are obliged to answer». Thus, “the most serious case would occur if negative consequences were imposed for not attending to communications outside of the day and the criteria established in the protocols that the company adopts.”

Another key point of the law is that “the employer, after hearing the workers’ representatives, will draw up an internal policy aimed at workers, including those in managerial positions, in which they will define the modalities for exercising the right to disconnect and training and awareness-raising actions of the personnel on a reasonable use of the technological tools that avoid the risk of computer fatigue. In particular, the right to digital disconnection will be preserved in the cases of total or partial realization of remote work, as well as in the domicile of the employee linked to the use of technological tools for employment purposes ”.

The problem is that “companies see it as an unnecessary burden”, but the reality is different

Regarding this point, Carrasco acknowledges that «the reality is that most companies have not adopted these policies internal that define the rules of digital disconnection. This is where they should take into account the potential exceptions to the general rule, among other reasons regarding the job position, the company in question, etc. ». The problem is that “companies see it as an unnecessary burden”, but the reality is different. “There may be situations that end in a sanction by the company in the event that a worker cannot rest because the company does not have disconnection protocols,” he explains. “If the workers who are suffering this ‘harassment’ end up knowing the norm -continued-, it is possible that there will be complaints before the inspection bodies after seeing these generalized breaches”.