The Act of 11 May 2018 on the Protection of Personal Data introduced following rules on the camera monitoring of employees into the Polish Labour Code.
Justification of monitoring
According to the new rules, camera monitoring must serve a specified purpose and cannot be used in order to obtain and process sensitive data about employees. Employers are entitled to use camera monitoring only in connection with the safety of the employees, the protection of property, the supervision of production, or to prevent the disclosure of business information which could expose the employer to damage.
Scope of monitoring
Camera monitoring may be used on the premises of the employing establishment as well as in the area surrounding the premises.Under the new rules, camera monitoring cannot include spaces such as changing rooms, canteens, smoking rooms, sanitary rooms and spaces that trade union organizations use, unless the monitoring of such spaces is justified by the purposes mentioned above and does not infringe employees’ personal interests or trade unions’ rights.
Retention period of material obtained from monitoring
The new rules also prescribe the maximum retention period of the material obtained from camera monitoring (it must not be stored indefinitely). This material can be retained for three months after the recording took place, unless the recording constitutes (or may constitute) evidence in legal proceedings. In this case, the material may be stored until the final decision in the proceedings is issued.
The new rules forbid concealed monitoring – employers who want to introduce camera monitoring in the workplace must inform their employees about the monitoring and its purpose and scope by introducing appropriate provisions to the collective bargaining agreement or workplace regulations (or by introducing a separate bylaw if there is no collective bargaining agreement or workplace regulations in place) at least two weeks before the monitoring starts. Moreover, employers must publish information about the use of cameras in the spaces, buildings in which they are used.
Monitoring of employees’ e-mail correspondence
The employer’s obligations connected with camera monitoring apply also in the case of other monitoring measures, including the monitoring of employees’ e-mail correspondence. According to the new rules, monitoring employees’ e-mail correspondence is possible only when it is necessary to ensure the proper organization of working time and in order to check whether employees are using the equipment they have been provided with in accordance with its purpose. Importantly, the monitoring of correspondence must not infringe secrecy of the correspondence, which in practice means that the employer must not check employees’ private correspondence when checking their business mailboxes. In order to minimize the risk of the employer accessing employees’ private information, we recommend that employers forbid employees from using business mailboxes for private purposes or advise employees to indicate which messages are private by creating a separate, clearly labelled folder.
In order to ensure compliance with the new rules, we strongly recommend that employers who monitor their employees have introduced the required information into their internal by-laws and ensure that the type and purpose of the monitoring is compliant with the statutory provisions.