#CostaRica 🇨🇷 #BDS_Article: Private Life vs. Work Life: To What Extent May an Employer Intervene in the Private Sphere of Their Employees

Within the powers granted by law, an employer has managerial, supervisory, and disciplinary authority over the actions of their employees, provided such actions fall within the scope of the employment relationship. Therefore, individuals should, in theory, be able to behave as they wish outside the workplace and outside working hours without it affecting their labor rights, correct? Well, the answer is not so definitive.

Although the employer is required to respect the privacy of their employees, there are actions carried out in private life that may indeed impact the balance of the employment relationship. As a result, the employer may be entitled to intervene or to make decisions regarding the continuity of the employment contract. Below, we analyze some of these actions:

1. Drug or Alcohol Use:
   Labor legislation prohibits the use of drugs or alcohol in the workplace or during working hours, as well as performing job duties under the influence of such substances. In this regard, since the effects of consumption during personal time may extend into working hours, the employer may supervise and discipline employees who objectively exhibit such effects, even when the consumption occurred in a private setting.
2. Sexual Harassment:
   The Law Against Sexual Harassment At Work and Schools does not limit harassment to actions that occur in the workplace or during working hours. Rather, the focus is on the harmful impact these actions may have on the victim’s employment conditions, regardless of whether the conduct or assaults arise in private or even intimate settings.
3. Serious Offenses or Assault Against Employer Representatives:
   According to Article 81(c) of the Labor Code, committing insults, slander, or physical assaults against an employer representative, outside the workplace and outside working hours, may constitute a serious offense that justifies dismissal without employer liability. Thus, labor law recognizes that balance and good faith between the parties must prevail at all times, not just within a particular place or schedule.
4. Inappropriate Use of Social Media:
   Although the constitutional right to freedom of expression exists, an employee may be subject to disciplinary measures if their social media posts harm the employer’s image or prove a breach of their employment contract, regardless of the time or place of publication.
5. Unfair Competition:
   Based on the ethical obligations implicit in the employment contract, it is understood that an employee must not compete against their employer’s business, even if such activities are carried out during their free time and/or using their own resources.
6. Damage to Corporate Image:
   If an employee’s private actions have the potential to damage the company’s image, the employer may legitimately exercise their disciplinary authority.
7. Breach of Medical Leaves or Statutory Leaves of Absence Conditions:
   Medical leaves and statutory leaves of absence are issued by the competent authorities for specific purposes, such as health recovery or caregiving. Therefore, restrictions apply to the activities that the recipient of such leave may perform, whether during or outside of their usual working hours. If the employer confirms a breach of these restrictions, they may adopt corrective or disciplinary measures, even when the employment relationship is technically suspended.

Notwithstanding the above, we remind employers that any interference in the private sphere of employees must be approached with extreme caution in order to avoid engaging in abusive exercise of their authority.

Lucía Solórzano

 Partner, BDS Asesores

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