PERGUNTE AO GURU
Plano De Implementação Da Lgpd – Consent as a legal basis for employee data processing operations needs to be very carefully evaluated before being used
Valid consent in the design of the LGPD is free, informed and unequivocal. However, when we analyze the relationship between employee and employer, we find the existence of a specific context: the employee’s subordination to the boss’s directive power.
After the LGPD came into force , discussions regarding the processing of employee data by companies increased. This is because the law makes no reference to the peculiarities of the relationship between employer and employees.
How should Human Resources departments proceed? Are there any rules regarding the type of information that may be collected? Will I need to ask for consent to use employee data?
It is inevitable that companies use the personal data of their employees, however, the criteria established in the LGPD must be observed. Although the law is broad and generic in nature, it establishes rights for data subjects, such as access to information and rectification. This must be guaranteed to employees.But the big question is related to the use of consent as a justification for the processing of such data.
Valid consent in the design of the LGPD is free, informed and unequivocal. However, when we analyze the relationship between employee and employer, we find the existence of a specific context: the employee’s subordination to the boss’s directive power.
Plano De Implementação Da LGPD – Therefore, considering framing consent as a justification for data processing would be the same as considering possible contractual negotiation under equal conditions between the parties. A myth!
Plano De Implementação Da LGPD – Therefore, it is not recommended to use consent as a legal basis for processing employee data, as there is no guarantee of free expression. In addition, it is essential to understand that there are other legal bases provided for in the LGPD and that, in this case, are more appropriate than consent: contractual execution and legal obligation.
The employer may legitimately process the data of its employees, based on the performance of the employment contract or on an obligation provided for by law. The wrong framing of the legal basis can generate serious problems for companies, in addition to often causing operational difficulties in obtaining consent.
Plano De Implementação Da LGPD
Of course, there are situations in which the use of consent will be valid, but it will require a careful analysis of its peculiarities — since these are exceptional cases.
Therefore, be warned: do not ask employees for consent without at least evaluating the data processing operation in question.
Especially because, even if the treatment is legitimized by the execution of the contract or legal obligation, it is necessary to guarantee the employee’s right to information about the use of their data.
Gabriela Totti is a lawyer and consultant in Privacy and Data Protection at Biolchi Empresarial
Student of Turma Presencial Porto Alegre 1 and Turma EAD 29 of the Privacy Academy
Plano De Implementação Da Lgpd
