On April 28, 2022, the E. Supreme Court upheld the judgment issued by the Court of Appeals of Santiago, which dismissed the appeal for protection filed by a workers’ union, which sought to declare arbitrary the use of attendance registration systems of workers by means of geolocation and facial image capture. Specifically, the Court of Appeals points out the following:

1. The legal regulation of telecommuting and teleworking establishes that it is the responsibility of the employer, where appropriate, to implement at its own cost a reliable mechanism for recording the fulfillment of the working day remotely, in accordance with articles 33 and 152 quater J of the Labor Code.

2. In this regard, the Court of Appeals pointed out that the Labor Directorate, by means of Ordinary No. 1408 of April 8, 2020, carried out an analysis regarding the appropriateness of the use of mobile applications for time control and sending photographs to mark the daily workday.

3. The Court of Appeals agrees with the Labor Directorate with respect to the appropriateness of such marking system, to the extent that the parties have agreed in the employment contract or its annex and that the photograph is used only for the identification of the worker. In such circumstances, the obligation to take a photograph and, subsequently, send it through a communication network, in principle, would not violate the fundamental rights of workers.

4. Additionally, the Court of Appeals pointed out that the Labor Directorate, in the aforementioned Ordinary, indicated that “the photograph itself constitutes an electronic document, in accordance with the provisions of Article 2, letter d) of Law No. 19,799, on electronic documents, electronic signature and certification services of such signature, by means of which the workers could identify themselves in a system, as they would do with a password or their fingerprint. Having specified the foregoing, it should be pointed out that (…) if it is intended to be the means of identification for making markings in the attendance system, it would be in accordance with the law. On the contrary, if its purpose were another, for example, to determine work performance parameters, the photograph in question could not be part of a system specifically authorized for the control of attendance and working hours”.

5.  In view of the above arguments, the Court of Appeals resolves that there is no illegal or arbitrary conduct in the adoption of the system of registration and control of attendance adopted for workers subject to the modality of telecommuting or teleworking, as long as it has been so agreed in the respective employment contract or annex thereto and the limitations imposed by law and instructions of the Labor Directorate are observed by the employer.

Should you require additional information on this matter, please contact: Alfred Sherman (asherman@jdf.cl), Gonzalo Aravena (garavena@jdf.cl), Felipe Ovalle (fovalle@jdf.cl) and/or Jorge Tisné (jtisne@jdf.cl).