SPAIN Law and Practice Contributed by: José Antonio Segovia, A&O Shearman
enant is, the compensation should range from 70% to 100% of the employee’s fixed salary. A post-contractual non-competition restriction is deemed to be a bilateral covenant, the waiver of which requires the agreement of both parties. 2.2 Non-Solicits Non-solicitation of customers is considered to be included within the scope of a non-competition clause. However, non-solicitation of employees is not regulat - ed in Spain; therefore, this type of clause could raise enforceability issues. 3. Data Privacy 3.1 Data Privacy Law and Employment Organic Law 3/2018 of 5 December 2018 on the Pro - tection of Personal Data and the Guarantee of Digital Rights sets out a number of specific provisions that apply when processing an employee’s personal data. Surveillance and Recording in the Workplace Employers may process data collected through cam - era or video camera surveillance systems to supervise employees, as established by Article 20.3 of the Work - ers’ Statute and by public service legislation, provided that these functions are exercised within their legal framework and within the limits inherent therein. The Workers’ Statute permits an employer to adopt such measures (having regard to the employees’ dignity and the capacity of workers with disabilities) to verify that employees are fulfilling their employ - ment obligations. Employers must provide advance, express, clear and concise notification to their employ - ees and, where appropriate, to their representatives about the use of camera surveillance systems. In the event that the flagrant commission of an unlaw - ful act by an employee has been captured by such a system, the duty to inform shall be understood to have been fulfilled when an information notice has been placed in a suitably visible location, which gives notice of the processing, the identity of the controller and the data subjects’ rights. In no case shall the installation of
sound recording or camera/video camera surveillance systems be permitted in places intended for the rest or leisure of employees. The use of sound recording systems will only be allowed if such use is relevant to the protection of installations, goods and persons in the workplace and adheres to the principles of proportionality and mini - mum intervention. The data collected in this way must be deleted within a maximum period of one month from its capture, except when it must be kept to prove the commission of acts that threaten the integrity of persons, goods or facilities. In this case, the images and sounds must be made available to the competent authority within 72 hours. Digital Devices in the Workplace Employees have the right to protection of their privacy when using digital devices made available to them by their employer. The employer may only access content from such digital media for the purpose of monitoring compliance with work or statutory obliga - tions and maintaining the integrity of such devices. Employers shall establish criteria for the use of digital devices, always respecting the minimum standards for the protection of employees’ privacy. The employees’ representatives shall participate in establishing such criteria. The policy around employer’s access to the content of digital devices shall precisely specify the authorised use thereof and establish guarantees to preserve the privacy of workers, such as, where appropriate, those periods when the devices may be used for private purposes. Employees shall be informed of the said criteria. The law requires that companies establish clear poli - cies on device usage with the involvement of employ - ee representatives, as confirmed by recent case law. Furthermore, employer access to digital content must be strictly limited to ensuring device integrity, avoid - ing invasive practices such as behavioural monitor - ing or the use of artificial intelligence without proper justification. The Spanish Data Protection Agency further empha - sises that employers must clearly define usage poli -
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