Tue, Aug. 01, 2017

The Danger of Electronic Surveillance of Staff

Poisonous Digital Harvest
SFe - Washington.   The top German court for employment matters in Erfurt exa­mi­ned whether an employer may electronically monitor its employees, using a key­log­ging system. It published its decision on July 27, 2017 in the matter 2 AZR 681/16. The defendant employer had installed keylogging spyware on all of its computers in order to observe their use by its staff whom it had informed about the measure. A dismissed staffer sued the company whose spyware proved that the plaintiff had used its com­pu­ter extensively for personal matters during working hours.

The German Supreme Court for Employment Matters, Bundesarbeitsgericht, decided that the generalized, non-specific surveillance of employees violates the right of pri­va­cy in Art. 2(I) of the German Federal Constitution in conjunction with its Art. 1(I) when the employer lacks reasonable cause to suspect a violation of work rules which relates to §32(I) of the Federal Data Protection Statute. An employer needs a rea­sona­ble sus­picion that the employee commits an offense or another serious violation. The dis­pu­ted matter lacked a specific cause so that the dismissal was void, as the digital harvest was poisonous.

At first glance, German and American Federal Law seem to converge in the area of privacy at the place of employment. In New Orleans, The United States Circuit Court of Appeals for the Fifth Circuit had decided on July 25, 2017 in T-Mobile USA Inc. v. NLRB with a similar result. However, the context in the T-Mobile case was dif­fe­rent: Some monitoring is illegal when it impacts unionization efforts.

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