#CostaRica 🇨🇷 #BDS_Artículo: “I Know What You Did Last Shift”: Employer Monitoring Power and Their Limits

From that perspective, one might assume that employees lose all autonomy the moment they enter the workplace—but this is clearly not the case. Employer powers have limits, and monitoring is no exception.

In decision No. 00344–2004, the Second Chamber of the Supreme Court stated:

Although, by virtue of the employment contract, the employer may exercise a right of control and supervision, the exercise of that right is limited by the workers’ fundamental right to privacy—which has a higher priority—and the respect for their dignity.”

So, how can an employer legitimately monitor workers without violating their rights? Decision No. 07736–2020 of the Constitutional Chamber outlines several key principles:

• Right to information: “When workers are subject to surveillance measures, they should be informed in advance of the reasons behind them, the hours during which they will apply, the methods and techniques used, and the data that will be collected, and the employer must minimize intrusion into the employees’ private lives.”

This principle makes clear that surveillance must not be secret or concealed. Hidden cameras, unauthorized access to private communications, or GPS devices secretly installed in vehicles are generally unlawful—except in very specific cases. The decision clarifies:

Secrecy in surveillance matters should only be permitted when: a) it is carried out in accordance with national legislation; or b) there are sufficient suspicions of criminal activity or other serious offenses.”

• Legitimate purpose: “There must be a specific, explicit, and legitimate purpose that justifies the restriction placed on workers’ fundamental rights. Any purpose is not sufficient; there must be a strong motivation, which must at a minimum be consistent with or proportionate to the sacrifice required from the other party, given the balance that must exist between the company’s interest and the worker’s fundamental rights.”

The second limit concerns the reasonableness of the control measure in relation to its purpose. The employer’s objective must be significant enough to justify restricting rights such as privacy and intimacy. For instance, using continuously active computer cameras solely to verify employee activity may be considered excessive. The Constitutional Chamber notes: 

Continuous surveillance should only be permitted if required for health, safety, or the protection of property.”

• Proportionality: “There must be a necessary proportionality between the purpose pursued by the employer—in other words, proving the alleged misconduct, crime, or disloyalty of the employee to the company—and the fundamental right to privacy and intimacy.”

This third principle is directly tied to the legitimacy of the purpose. The surveillance method must be proportionate to the seriousness of the misconduct being investigated. For example, accessing an employee’s private communications may be disproportionate if the goal is to verify a minor infraction, such as an inappropriate comment. However, it may be justified in cases involving reasonable suspicion of corruption.

Finally, it is important to remember that the legitimacy of any disciplinary action depends on the legitimacy of the monitoring that precedes it. If the method used to prove misconduct is excessive or infringes on workers’ rights, the resulting evidence may be inadmissible. For example, a video recording of an employee taken without prior notice or consent would not justify disciplinary action.

Organizations should regularly review their monitoring practices to ensure compliance with these limits and avoid legal risks.

Lucía Solórzano

Partner, BDS Asesores