Technological advancement is giving employers possibilities for surveilling individual employees during their work that are no longer merely theoretical. Both hardware and software can be used to acquire detailed knowledge about the times, places, and manner in which work is performed. The specific goal of using such equipment may be to effectively monitor the employee, and practical reasons usually take center stage. Nonetheless, along with using such equipment, the employer uses the findings to “keep surveillance on” the employee, which may occur without the employee wanting it to. Anyway, the number of cases in which employers deliberately also use the new technical options for surveilling employees will grow in the future. Therefore, the following information should provide a good overview of which technological capabilities are available to employers in today’s work world (also) for surveilling 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 surveillance of furnished computers must be mentioned in connection with the surveillance of workplaces. Video surveillance is not really new and has already been the subject of high court decisions on multiple occasions. The same applies to phone surveillance capabilities, which existed since before the advent of the digital revolution. Newer examples include the GPS trackers in company-owned motor vehicles for locational purposes in times of increasing mobility requirements, or the use of “keyloggers” like hardware and software for the recording of inputs on computer keyboards. 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 constantly 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 the equipment mentioned – whether it is concealed or appears to be 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. The employer routinely has an interest in preventing adverse financial and organizational effects, whereas the employee has an interest in protecting his or her privacy. For this reason, the question of whether 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. This principle is found in the regular statutes, in Section 32 German Federal Data Protection Act, the essential rules for work privacy protection within 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 this is necessary for carrying out (or ending) 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 of the Federal Data Protection Act.
A glimpse at current Federal Labor Court jurisprudence exemplifies this system. Recently, the court had to decide 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, and had previously disclosed its use in an email circular. In justifying the use in the email, the employer mentioned that using the keylogger was supposed to prevent misuse, “for example (…) the illegal downloading of movies.” In the course of implementing this measure, the employer became aware that an employee had used the computer for private purposes during work time, and then terminated him without notice. In response, the employee filed suit on the ground that the employer had severely and for no reason encroached on his basic right of informational self-determination by using the keylogger “surreptitiously.” The judgments in the trial court and the initial court of appeal each agreed with the complainant. These judgments were confirmed by the Federal Labor Court. The Federal Labor Court reasoned that, absent consent under Section Federal Data Protection Act, an encroachment on the right of informational self-determination would be present; this could be permissible under Section 32 Federal Data Protection Act if need be, but not in this case. The use of the keylogger was comparable to covert video surveillance, which is only permissible when 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 knowledge gained concerning the private use of the office PC could not be drawn on by the employer as cause for giving notice of termination.
This paradigmatic judgment illustrates that, in times of digital change involving constant simplification of the options for surveilling staff, employers are all the more constrained to make careful choices about the use of such equipment. In cases of doubt, it is appropriate for the employer to communicate the use of such equipment openly and to secure explicit consent – and 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 this use with good arguments.