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    The legal system is using cell phone location to analyze the right to overtime pay

    Caio Medici Madureira, partner of Tortoro, Madureira & Ragazzi Advogados

    The Labor Court started to accept as evidence the records of workers’ cell phone location (geolocation) to decide whether they can be granted the right to overtime pay. There are favorable decisions from the Regional Labor Court (TRT) of Santa Catarina and in the first instance of the states of Pernambuco, Ceará, Santa Catarina, and Mato Grosso according to a survey carried out by Ferraz de Camargo and Mastunga Advogados (FCAM).

    The decisions follow the trend of the Labor Court to increasingly adopt the use of digital evidence – a measure advocated by the former president of the Superior Labor Court (TST), Maria Cristina Peduzzi. Last year, the National School for the Training and Improvement of Labor Magistrates (Enamat) addressed the issue in progress.

    Nonetheless, the topic is controversial, and some judges understand that the geolocation request may invade the personal and private life of an employee. According to them, there are other means of proving whether or not they have worked overtime.

    Generally, these requests in legal processes come from financial institutions. They request geolocation in place of witnesses to avoid overtime pay. In most cases, judges have authorized the measure, according to the FCAM attorney who coordinated the survey, Silvia Fidalgo Lira.

    Recently, Santa Catarina’s TRT allowed for the use of geolocation from the cell phone of a bank employee who claimed to work overtime frequently. Most judges in Specialized Section 2 understood the request does not violate the worker’s privacy.

    The decision was given on appeal by the worker against a decision of the first instance. Judge Tatiane Sampaio, from the 2nd Labor Court of Joinville, had determined that the information be gathered by sampling, indicating the location of the cell phone only on working days and in 20% of the contractual period. According to her, “digital evidence is more relevant and effective than testimonial evidence”, and the research parameters would avoid violating the employee’s privacy.

    In the TRT, three out of ten judges understood that the research could only be authorized by the legal system if there are no other means of proof, such as documents and witness statements. The majority, however, followed the vote of the rapporteur, Judge Gracio Petrone.

    While casting his vote, he affirmed the legislation does not establish a hierarchy among types of evidence. “If the new digital evidential means provide more consistent and trustworthy data than testimonial evidence, there is no reason for its supply to be relegated to a second procedural moment, having to, otherwise, precede the oral evidence”, he says.

    According to Petrone, the measure does not offend the constitutional guarantee of inviolability of communications or the General Law for the Protection of Personal Data (No. 13,709/18), provided that the data collected remain confidential and their analysis reserved for the parties involved (proceedings No. 0000955-41.2021.5.12.000).

    For Caio Madureira, a partner at Tortoro, Madureira & Ragazzi, representing the bank, the request for geolocation puts an end to the conflict generated in the testimonial evidence, which often shows contradictory versions, far from the reality of the facts. The decision, he adds, breaks the paradigm of years in the Judiciary, which virtually accepted only testimonial evidence. “Today we have technology in our favor, which brings the coldness of data and the effectiveness to seek the truth.”

    In Ceará, Judge Tiago Brasil Pita, from the 1st Labor Court of Maracanaú, also decided upon the use of geolocation in a case in which there was divergence in the testimonies of witnesses. He understood that the evidence comes “to add to the procedural evidence and to give the court an analytical and more precise view of the displacements of the plaintiff in her daily work, a measure that proves to be proportional and relevant to the delineation of the controversy regarding the working day” (proceedings No. 0001307-35.2021.5.07.0033).

    Judge Mauro Roberto Vaz Curvo, from the Labor Court of Primavera do Leste (MT), also accepted geolocation at the request of a credit financing company. He ordered, at the beginning of March, that the companies Vivo, Facebook, Google Brasil, Twitter Brasil, and Apple provide, “within 15 days, the plaintiff’s geolocation data and the times they indicated to be working overtime to extract geolocation data.”

    These decisions, says lawyer Silvia Fidalgo Lira, are correct because no constitutional right or guarantee is absolute and must coexist harmoniously, with the social interest prevailing in each case. “Although the Constitution protects intimacy and privacy, it also provides for adversarial proceedings and ample defense, which are also fundamental rights,” she says.

    According to her, digital evidence can and should be adopted to try and get to the real truth. “Especially in the Labor Courts, as it is more effective than the testimony of witnesses, which are often inaccurate and may have a bit of subjectivism on the part of the parties”, she says. She recalls that the processing of personal data, for procedural purposes, is allowed by the General Personal Data Protection Law (LGPD).

    However, decisions have not always been favorable to geolocation requests. Substitute Judge Ivana Meller Santana, from the 48th Labor Court in São Paulo, for example, understood that the violation of the employee’s electronic data is not appropriate, except, as a last resort, by court order for the purposes of criminal investigation or criminal procedural instruction. According to her, “there is a total disproportion between the breach of confidentiality and the end sought” (proceedings No. 1000888-88.2021.5.02.0048).

    According to the decision, “it would constitute an impermissible invasion of privacy”. The judge also emphasizes in the text that, in this case, with the implementation of the home office, as a result of the covid-19 pandemic, “the geolocation would not be of any use, since the author is at home most of the day at least, the geolocation would not demonstrate whether or not he was working.”

    The case involves a bank. According to her, the financial institution could have other means of proving whether or not the employee was present, through security cameras or system access reports.

    The judge also cites the decision of the TRT of Santa Catarina that overturned the preliminary injunction of the first instance for understanding that “even if the legal system authorizes digital proof of geolocation, as it affects the sphere of people’s private life, it is up to the court to weigh its real need in view of other available evidence” (proceedings No. 0000658-34.2021.5.12.0000).

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