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Employees’ right to digital disconnection recognized in Spain

Employees’ right to digital disconnection recognized in Spain

  • 07/12/2018

On December 7th 2018 the Organic Law 3/2018 on Personal Data Protection and Guarantee of Digital Rights -“Ley Orgánica 3/2018, de 5 de diciembre, de Protección de Datos Personales y Garantía de los Derechos Digitales“ (hereinafter, “LOPD”)- came into force. Although the LOPD was initially intended to merely implement the EU General Data Protection Regulation (GDPR) in Spain, its scope was suddenly expanded in order to include what has been defined as “digital rights”. The new LOPD grants for the first time a right to digital disconnection for the employees (article 88 of the LOPD), also known as digital detox. It is now compulsory for employers to issue a “digital disconnection policy” that regulates the right to digital rights of employees and that ensures that this right is effectively guaranteed.

Under LOPD employees have the right not to be connected or available during rest times and holidays in order to ensure a proper work-life balance. This means that employers in Spain will have to design a disconnection policy that guarantees the employees’ right to digital disconnection in accordance with their position and establishes a culture that respects the right to digital disconnection. As way of example, the disconnection policy can forbid the use of corporate email outside working hours, restrict the access to servers temporarily during certain timeframes, or limit the number of persons that can be copied on an email.

In this regard, companies that have employee representatives shall discuss the content of their digital disconnection policies with them. Also, the new LOPD sets out that future sector collective bargaining agreements shall include specific digital disconnection regulations.

It is important to note that the LOPD does not set forth any specific penalties for breach of this obligation. However, disconnection policies are a good tool to avoid sanctions and claims regarding maximum working time and health and safety at work, and can be seen as a new opportunity for employers to regulate the uses of corporate email and corporate devices.

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