Technological progress allows employers to monitor their employees during working hours in ways that are no longer merely theoretical. Both hardware and software may be used to gain detailed information on the times, places, and manner in which work is performed. While the specific goal may be to effectively monitor workers for practical reasons, employers may still use the findings to “keep surveillance on” their employees without their consent. Either way, the number of cases in which employers deliberately use the new technical options for monitoring employees will grow in the future. The following information should provide an overview of which technological capabilities are available to employers in today’s business world (also) for monitoring employees, and how their use – where it serves as deliberate surveillance of individual employees – must be handled from a legal perspective.
Technological progress versus informational self-determination
The examples of video surveillance, phone surveillance, GPS tracking, and monitoring of work-issued computers go hand in hand with the surveillance of workplaces. Video surveillance has been available for quite some time and has already been the subject of high court decisions on multiple occasions. The same applies to phone surveillance options that existed since before the advent of the digital revolution. Newer examples include GPS trackers in company-owned vehicles or the use of “keyloggers” to record every keystroke on computers. The use of such technical devices stands at odds with the general personal rights of the individual employee that are protected by basic laws, so that it is necessary to weigh both interests on a case-by-case basis when considering the question of whether the use is lawful.
It is possible to engage in purposeful surveillance of employees in manifold ways with the help of technical equipment – whether concealed or obvious to all employees. In either case, the employer’s and the employee’s positions, which are protected by the basic laws, stand opposed to one another. Employers routinely have an interest in preventing adverse financial and organizational effects, employees in protecting their privacy. For this reason, the question of whether the use of technical equipment for surveillance is legally permissible is always resolved according to whether the surveillance interest of the employer outweighs the privacy interest of the employee. In legislation, this principle is found in Section 32 German Federal Data Protection Act, the essential rules for work privacy protection under the standardized criterion of necessity (from May 25, 2018 on: Section 26 Federal Data Protection Act). Accordingly, employers may collect, process, or use personal data whenever necessary for performing (or terminating) the business relationship. In this context, necessity is nothing other than proportionality. Should necessity be lacking, such measures may only be carried out to the extent that the employee has consented to them as defined in Sections 4(1), 4a Federal Data Protection Act.
A glimpse at current Federal Labor Court jurisprudence exemplifies this system. Recently, the court ruled on whether the use of a keylogger was warranted in a specific case under Section 32(1) Federal Data Protection Act (July 27, 2017, 2 AZR 681/16). Specifically, the employer defendant had surveilled the employee by using a software-based keylogger, which had previously been disclosed in an email circular. In justifying the use in the email, the employer had mentioned that using the keylogger was intended to prevent misuse, “for example (…) the illegal downloading of movies.” The employer subsequently became aware that an employee had used the computer for private purposes during working hours, upon which he was terminated without notice. In response, the employee filed suit on grounds that the employer had severely and for no reason encroached on his basic right of informational self-determination by “surreptitiously” using the keylogger. The trial court and the initial court of appeal ruled in favor of the complainant, which was then confirmed by the Federal Labor Court. The Federal Labor Court reasoned that, absent consent under Section 4a Federal Data Protection Act, an encroachment on the right of informational self-determination would be given; while this might be permissible under Section 32 Federal Data Protection Act, this was not the case here. The keylogger use was comparable to covert video surveillance, which is only permissible where the employer has a well-founded suspicion concerning a crime that has been committed or comparable serious breaches of duty. Because the employer could not produce any facts along these lines, the information gained on the private use of the office PC could not be used by the employer as cause for giving notice of termination.
This judgment illustrates that, in times of digital change with ever easier options for surveilling staff, employers are held to make careful choices about the use of monitoring equipment. In cases of doubt, employers should communicate the use of such equipment openly and secure explicit consent – for the benefit of workplace harmony, with a well-considered rationale. Otherwise, the principle of proportionality must be strictly observed: the stronger (and more covert) the encroachment on the employee’s right of informational self-determination through the use of modern technological surveillance, the more the employer must be able to justify its use with sound arguments.