Remote monitoring of employees through tablets, smartphones and other devices used as part of the working activity might be easier following the approval of changes to the Workers’ Statute.
The old regime on remote monitoring of employees
Remote monitoring of employees has been always prohibited in Italy since this practice was deemed to restrict employees’ rights. But some flexibility had been identified by courts and by the Italian privacy authority that allowed the so called “defensive checks” i.e. the possibility to get access to data relating to employees activity (e.g. their emails or Internet browsing) if there is a suspect of illegal conduct perpetrated by an employee.
On this basis, the Italian privacy authority had issued guidelines on the monitoring of employees’ emails and Internet usage posing strict restrictions to the scenarios where such practices could be performed and in any caserequiring the prior approval of trade unions.
Some flexibility had been showed by courts in the recent cases and the more recently the Italian privacy authority had also allowed the usage of mobile devices tracking the location of employees. But such practice was still subject to a number of safeguards set forth in the decision of the privacy authority and to the prior consultation with trade unions.
What changes on remote monitoring of employees
In an attempt by the Government to adapt employment law to technological developments, the Board of Ministries cancelled the above mentioned provision of the Workers’ Statute providing that:
- Instruments and devices whose sole purpose is to monitor employees’ working activity are still prohibited;
- Audio video systems and other devices that can also trigger a remote monitoring of employees can be installed only for production and organization purposes with the prior approval of trade unions; and
- Instruments of point 2 that are necessary for the performance of the working activity as well as those aimed at monitoring accesses/exits from the workplace can be installed without the prior approval from trade unions, but adequate prior privacy information notice shall be provided to employees. And the information collected through such devices can be used also as part of disciplinary proceedings.
What are the implications of such change?
The reaction of the public opinion was not consistent since trade unions deemed such move to be an excessive restriction of employees’ rights, while the industry appreciated the change justifying it as a “natural” consequence of technological development.
In our view the “tricky” element of the provision is the qualification of what devices are deemed necessary for the performance of the working activity. Smart phones, tablets are similar devices can track employees’ location, butwhat about wearable technologies and in general Internet of Things devices that need to monitor employees’ health conditions and/or behavior to ensure that they are able to perform the working activity for instance in case of dangerous jobs?
Is the new provision introducing a blanket exemption that will broaden with the technological development?
And the reaction of the privacy authority?
The privacy authority did not comment on such regulatory change, but the question is whether the new provision
- either prevents them from imposing further data protection law restrictions to employees’ monitoring as it refers only to the provision of a privacy information notice,
- or the change only waived the need to obtain in some circumstances the approval from trade unions.
It is unlikely that the privacy authority will not take a position on the matter, but for the time being “Big Brother” fans might face still some troubles…