Geolocation, working hours and other labor rights in Nicaragua

By: Bertha Xiomara Ortega

The era of technology is here to stay and to permeate all areas of life, including labor relations. The management power of the employer in this era, and in many cases, is exercised through new technological tools that allow remote surveillance and provide an amount of information and/or data that are generated through cell phones, tablets, and any other electronic device in which a GPS (global positioning system) has been adapted, through which, although it is not possible to observe what the worker does, (as in surveillance cameras), it is possible to access all the information related to their activities, whether or not related to the contracted work. For example, where he stopped, for how long, and the exact place where he is located, the route he follows in his displacement, etc. is established.

This type of device is normally used in the supervision and control of work performed outside the workplace where there is no control by the employer’s management. For the performance of these jobs, the employer is required to provide the necessary means or to assume expenses if such means are provided by the workers themselves. Examples of these occupations are: salesmen, agents, drivers, medical visitors, etc.

This possibility of having control of the movement of workers throughout the time they remain outside the workplace and in cases where this type of control is carried out, serves in turn, to have control of compliance with the working day. In other words, a GPS not only provides the employer with information about where the employee is at any given moment, but also whether he/she starts and finishes work within the hours specified in the work contract. The GPS is constituted as an evidentiary element for the demonstration of the effective working time, and this evidence can be invoked by both parties.

If we review the issue of geolocation in the light of other rights of the worker, we find that the existence of an employment contract where the worker is subordinated to his employer, does not eliminate or limit the other rights that the worker has as a person, such as the right to his dignity, privacy, and therefore there must be a regulation on the use of such GPS, since it cannot remain active 24 hours a day every day of the year in the device in which it has been installed because this would harm the fundamental rights mentioned above. Regulations must be implemented to limit such use in accordance with the working day, vacations, rest days and days off.

In addition to the above and of equal importance is the fact that the employee must be informed of the existence of this control system, its purpose and the possibility of using the information obtained in disciplinary proceedings, whether he uses his employer’s tools or authorizes them to be installed on his property.