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Surveillance in the Workplace: Big Boss is Watching You ?!

The most important information about employee monitoring in brief

Monitor your own employees: is that allowed?

Most of the means of employee monitoring are inadmissible if the legitimate interests of the employees prevail and they have not consented to the use of the various means. A given declaration of consent can also be revoked at any time.

Is clandestine surveillance allowed in the workplace?

Basically no. Covert employee monitoring usually violates data protection and personal rights (e.g. the right to one's own picture) of employees. Targeted and secret workplace surveillance can only be permitted in rare exceptional cases. Read more about this here.

What are the consequences of inadmissible employee monitoring?

From fines to compensation, violations of employee data protection can be costly for employers. You can find an overview of the possible consequences here.

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How much employee monitoring is allowed?

"Trust is good, control is better!" Following this motto, many employers have a basic distrust of their own employees. Not only the fear of theft, but also concerns about adherence to working hours or fear of gossip against the boss, which sow doubts about the loyalty of the workers, can give rise to the desire for targeted employee monitoring in one or the other. And in fact the technical possibilities are diverse: from video surveillance at the workplace, eavesdropping on employees, the use of GPS trackers, for example in delivery traffic, or monitoring the PC using a wide variety of software solutions.

However, just because there are so many options for surveillance in the workplace This does not mean that employees fear or even have to tolerate them in every nook and cranny. The use of many of these means is usually inadmissible. And with the implementation of the GDPR, employers also face more drastic fines for violations of employee data protection. That should be among the already outnumbered employers willing to be monitored Deter the majority

However, it is not strictly forbidden to monitor employees. How far it is allowed to go and under which circumstances employers are also allowed to secretly monitor their employees can be read below.

Data protection and general personal rights: On the limits of surveillance in the workplace

When monitoring workplaces are to consider two important fundamental rights of employees: the privacy, who regulates the handling of personal data, and the Protection of privacy. In the workplace, too, not everything actually has to do with the job. Conversations in the coffee kitchen, stays in break rooms and changing rooms - within these and other areas private life can also be affected. Even if, for example, company vehicles are allowed to be used for private journeys in addition to business trips, the contours between business and private life are blurred.

In principle, employers have no right to intervene or penetrate into the private sphere of their employees. This means: Monitoring in the workplace - even if permitted under legal aspects - must regularly stop at the border to privacy.

A exception can apply, for example, if private use of the work computer is expressly prohibited for operational purposes. The employer could then check randomly whether his employees adhere to it. Read all emailsIn order to locate private messages, however, he should not simply be able to do so. It should be clear that the message is private, and whether or not the subject indicates that is open to doubt.

Keylogging, screen capturing, microphone recordings & Co .: Computers as a spy tool

There are countless software solutionsthat enable monitoring at the workplace via the PC. Activities on the keyboard, on the web, logins, activity tracking in cloud-based systems - employee monitoring is made quite easy in these high-tech times. Many companies even advertise corresponding solutions.

But basically the following applies: A secret and comprehensive monitoring of all employees by their employer with appropriate software is not permitted. The use of software or other means for employee monitoring is basically only possible to a limited extent and usually only with the prior consent of the employees. To possible exceptions we'll come back later.

In individual cases, however, the Monitoring of login activities on the work PC: This can also be necessary on the basis of data protection (e.g. as part of access control). If a company works with personal data, it must comply with the data protection of the persons affected and z. B. often create logs about accesses and processing. This is to ensure that only authorized persons have access to personal data and that possible violations are discovered.

Video surveillance in the workplace: the right to one's own image

They are often used to protect against theft Video surveillance systems are usedwho want to keep an eye on offices or shops. The use of such systems is not strictly prohibited. However, it is usually not allowed to take place in secret. Every camera that monitors the workplace must be visible and its position must be known. If customers are also affected by the recording by video systems, they must be informed about this by means of appropriate notices.

Employees must also be informed about the use of systems for video surveillance at the workplace - for example as protection against theft, because this is where the right to one's own picture comes into play. You must know, where the cameras are set up, for what purpose the recordings are used, at what intervals they are deleted. Open video surveillance at the workplace is permitted if the employees consent to it, provided that the employer's interests worthy of protection do not outweigh them and so on Reservation of permission consists.

Important: Once consent has been given, employees can also revoke it at any time. In order for a declaration of consent to be effective, the employee must give it voluntarily and fully informed (about the manner, purpose, deletion periods, right of withdrawal, etc.). As soon as the consent is a prerequisite for a service or employment, the voluntariness can already be revoked, the consent be ineffective.

The targeted employee monitoring by camera - So about permanent spying on cashiers or observation of employees in changing rooms or the like. - is not permitted, however. The recordings may also not be used to monitor the work performance of the employees. The camera used also records sound, the employee interviews recorded in this way must not simply be listened to at will.

Right to confidentiality in your own word: Are employers allowed to eavesdrop on their employees?

Eavesdropping at the workplace is also generally not permitted. Follow phone calls, use laptops and other microphones for spying on, for example, in the home office or eavesdrop on conversations in companies via secretly installed microphones: These encroachments on data protection and the privacy of employees are regularly prohibited. 

When eavesdropping on employees As a rule, the legitimate interests of the employees predominate. An exception can be made, for example, with the appropriate consent of the employees.

For example, in Call centers Individual conversations are analyzed in order to identify possible sources of error or to find opportunities for improvement. However, the employee concerned must be informed and consent to this before starting work.

Are GPS trackers allowed in company cars? More and more delivery services are using driver tracking to improve customer satisfaction or to optimize fleet movement. This may be permissible in individual cases if the employee consents to this or is necessary for the implementation of the employment relationship. GPS tracking of employees in their free time, if they are also allowed to use the vehicle for private purposes, is not permitted, however, as this affects privacy. The use of tracking systems is controversial and should only be implemented by employers in consultation with a data protection officer in order to avoid problems.

When can an employer secretly monitor its employees?

As already mentioned several times, the Secret surveillance of employees is generally prohibited. However, since it is a Prohibition with reservation of permission acts, in individual cases, with a certain basis of legitimation (justification), secret surveillance at the workplace may still be permitted. In principle, namely, will also granted the employer the right to protect his own company

He can do about that if there is justified suspicion of theft (also regarding company secrets) and secretly monitor individual employees in a targeted manner. But: He has to do this in any case use appropriate, proportionate and targeted means and must not extend the surveillance to all employees regardless of suspicion. He would have to delete data from unaffected employees immediately. Forms the basis for this reservation of permission Section 26 (2) of the Federal Data Protection Act (BDSG):

"In order to uncover criminal offenses, personal data of employees may only be processed if factual indications to be documented justify the suspicion that the data subject has committed a criminal offense in the employment relationship, the processing is necessary for the detection and the legitimate interest of the employee the exclusion of processing does not predominate, in particular the type and extent are not disproportionate to the cause. "

An all-encompassing and clandestine employee monitoring by cameras seems mostly inappropriate, even if more adequate means allow monitoring of the specifically affected worker (e.g. unannounced inspection at the workplace). With video surveillance, a targeted control of individual workers is not possible, but all other employees who enter the monitored area are also indirectly affected. Covert video surveillance should therefore always be the last resort.

Danger! The measure taken for the monitoring must also not disproportionate be. Is it just about minor offenses or just one low suspicion, the employer must not immediately fall back on the strongest surveillance methods (such as video cameras). Employers are therefore well advised to first consult with their data protection officer in justified cases.

Consequences for employers in the event of unauthorized surveillance in the workplace

  • The personal data obtained through inadmissible or disproportionate employee monitoring are to be used in judicial proceedings (e.g. in the event of dismissals of the employees concerned) mostly not usable.
  • The violation of employee data protection can be based on the GDPR with Fines of up to 20 million euros (or a quarter of the worldwide annual turnover).
  • In addition, if the secret surveillance is discovered, the employees have one Right to immediate omission. Until the inadmissible monitoring has been discontinued, in rare individual cases even absenteeism may be permissible - provided that the salary continues to be paid. Here, however, the employees must also pay attention to proportionality in order not to risk dismissal due to refusal to work in the end.
  • A violation of the general personal rights by the employee monitoring can also Claims for compensation give reasons to the employer.

If you suspect or know that your employer is improperly monitoring its employees, if necessary, consult a lawyer to review your options. You can also inform the responsible supervisory authority about possible data protection violations - usually this is the data protection officer of the respective federal state or - in the case of public bodies - the federal data protection officer. You can find an overview of the contact persons on the website of the Federal Commissioner for Data Protection and Freedom of Information.

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Surveillance in the Workplace: Big Boss is Watching You ?!
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