In order to fulfill the obligations arising from the employment contract and vis-à-vis the authorities, the employer must monitor certain aspects of his employees' work. For example, whether they adhere to working hours, work overtime or take vacation. He must also check whether employees comply with their duty of care and follow instructions.
Monitoring the Behavior of Employees Is not Allowed
But what if the employer sets up video cameras that constantly observe employees or uses keyloggers that record everything that is written on a business PC? What if he archives data recorded by video cameras or microphones? Then he is quickly acting illegally. Because he is prohibited from monitoring the behavior of his employees.
Monitoring is only permitted for other purposes – as an exception to the ban on monitoring employee behavior. Reasons for monitoring can be:
- Ensuring safety and health in a company, preventing accidents -> e.g. an underground car park, dangerous machines or hazardous goods can be monitored.
- Ensuring quality -> e.g. by automatically recording the quality of produced parts.
- Optimizing processes or delivery routes -> e.g. by recording the routes of delivery vehicles.
- Access control -> e.g. by using badges.
Monitoring must be proportionate. This means that the interests of the employer to monitor employees must outweigh the interest of the employees not to be monitored. The system must be designed and used in such a way that it poses as little risk as possible to the personality and health of employees.
Employees Must Be Informed
In practice, it is not always easy to balance the interests of employers and employees. If employers use monitoring systems, they must be able to justify them conclusively. Employees must be involved with regard to the planning, set-up and deployment times of control and monitoring systems. The best way to do this is to set out the measures in a set of regulations and to involve employee representatives.
Data Misuse Is Punishable by Law
Technical monitoring systems usually store data and enable its evaluation. If the employer collects, processes and/or evaluates personal data, he must comply with the provisions of the Data Protection Act. Any processing of personal data must be carried out in a transparent manner for the persons concerned. They must be informed in advance and in detail about the nature, objective and purpose of the processing. Here, too, a set of regulations is recommended.
Employees may inspect the monitoring data stored relating to them if they request this and the data owner agrees. Only relevant personal data may be processed. These must be deleted after as short a period of time as possible, defined in advance.
Suspect – and Defend Yourself
With many technical systems, you don't notice that you're being monitored – for example, because you don't have a video camera in your field of vision. You must immediately become suspicious if your boss knows things about you that he or she could not possibly have learned from everyday exchanges at work. For example:
- At what times you were active or inactive on the business PC or cell phone,
- which websites you visited,
- what you wrote in e-mails, chats or Word documents, or
- where you were in or out of the company.
This indicates that you are being secretly monitored in your behavior. You have to defend yourself against this.
If an employer violates the principles listed in this article, he must take the monitoring system out of operation and replace it with a legally compliant one if necessary.
