Authors: Grant D. Petersen (Tampa), Simon J. McMenemy (London), Hendrik Muschal (Berlin)
The opinion reiterates that employers must have a legitimate legal basis to process employment-related data. The opinion confirms that employee consent cannot be used as the legal basis for the majority of processing because the unequal relationship between employers and employees casts doubt on the voluntariness of the employee’s consent. Instead, employers must justify the processing of employee data under other legal grounds such as the performance of an employment contract (e.g., for pay purposes), compliance with legal obligations (e.g., for tax obligations or legitimate interests of the employer, which must be balanced against the fundamental privacy rights of employees).
The opinion provides guidance for processing data in the following, common employment scenarios:
Processing Applicant Data
Employers should not assume that they can process social media information about a candidate simply because the candidate’s social media profile is publicly available. Rather, employers may review a candidate’s social media information only if necessary and if the candidates are properly notified of the processing in the text of the job advertisement or by other means. Further, an employer cannot require potential employees to “friend” the employer or provide access to the contents of their profiles. Finally, employers are required to delete any data collected during the recruitment process as soon as it becomes clear that the employer will not be making an offer of employment or that the individual will not be accepting an offer.
Processing Social Media Data During or After Employment
Employers may not review or monitor employees’ social media profiles to make employment decisions unless the employer can prove that such monitoring is necessary to protect legitimate interests (i.e., monitoring LinkedIn profiles of former employees to enforce non-compete obligations), there are no other less invasive means available, and the employees have been adequately informed about the extent of the monitoring.
Additionally, employers cannot require employees to use a social media profile provided by the employer, even where the profile is related to their jobs (e.g., as it may be for a spokesperson for an organization). Rather, employers must provide employees the option of a “non-work,” non-public profile that they can use instead of an official employer-related profile, and this option should be specified in the terms and conditions of the employment contract.
Monitoring Employee Usage of Information and Communications Technology
Although employers have a legitimate interest in monitoring employee use of company provided information and communications technology (ICT) to protect the security of the network and prevent unauthorized access to or release of confidential information, continuous or excessive monitoring of the ICT activity of employees is prohibited because employers may also access employees’ personal communications or activities. Instead, employers should take the following steps to prevent unauthorized access to or release of confidential information:
- Blocking suspicious incoming or outgoing traffic and redirecting employees to an information portal where they may ask for review of such an automated decision;
- Offering employees free, unmonitored Wi-Fi or stand-alone devices or terminals for personal use and communications;
- Providing guidance to employees regarding acceptable use of company ICT;
- Consulting with employee representatives or a representative sample of employees regarding monitoring practices;
- Conducting a data protection impact assessment (DPIA) prior to introducing monitoring technology;
- Implementing rules in the system that alert employees prior to sending a particular email that the email constitutes a possible data breach and allows the sender the option to cancel the transmission; and
- Providing employees with designated private spaces in the company’s systems that the employer cannot access except in exceptional circumstances.
Monitoring Employees Working Remotely
While employers may believe that there is a greater need to monitor remote, unsupervised employees, the use of software packages capable of logging keystrokes and mouse movements, screen capturing (either randomly or at set intervals), and logging of applications used and how long they were used is excessive, and employers are unlikely to prove that they have a legitimate interest for such monitoring.
Monitoring Employee’s Devices
Monitoring employee-owned devices per an employer’s bring your own device (BYOD) policy often involves monitoring technologies that collect identifiers such as media access control addresses or perform security scans. Consequently, employers should ensure that they:
- do not access sections of a device that are presumed to be only used for nonbusiness purposes (e.g., the folder storing photos taken with the device),
- use technologies that that offer additional protections such as “sandboxing” data (keeping data contained within a specific app), and/or
- consider prohibiting employees from using their own devices for work purposes if there is no way to prevent the monitoring of private use.
Implementing Mobile Device Management Applications
Mobile device management (MDM) applications enable employers to locate devices remotely, deploy specific configurations and/or applications, and delete data on demand. Employers should conduct a data privacy impact assessment prior to the deployment of any such technology where it is new, or new to the employer. Further, tracking systems should be designed to capture an employee’s device location data without providing the location data to the employer, except where the device is reported lost or stolen.
Monitoring Wearable Devices
Wearable devices that track and monitor the user’s health and activity are gaining in popularity. However, employers are generally prohibited from monitoring health data in this manner on devices they supply to employees, and it is highly unlikely that employees can give legally valid explicit consent for the tracking or monitoring of such data. Processing this data would be unlawful even if the employer uses a third party to collect the health data and the third party provides the employer with aggregated information about their employees’ general health.
Using Access Control Systems
Employer systems that control which employees can enter the employer’s premises or enter certain areas within the workplace are also capable of tracking employees’ activities within the workplace. Employers may legitimately monitor access to server rooms in which business-sensitive data and personal data relating to employees and customers is stored to protect such data. However, the continuous monitoring of the frequency and exact entrance and exit times of the employees cannot be used for purposes other than security—such as for employee performance evaluation.
Monitoring Employees Using Facial Recognition Programs
Currently, it is possible for an employer to monitor employees’ facial expressions by automated means to identify deviations from predefined movement patterns. This processing is likely to involve profiling and, possibly, automated decision-making. Therefore, employers should refrain from the use of facial recognition technologies in the workplace.
Monitoring Vehicles Used by Employees
Employers using GPS tracking devices or other telematics such as event data recorders in company vehicles must clearly inform employees that a tracking device has been installed in the vehicle, that their movements are being recorded while they are using that vehicle, and/or that their driving behavior is being recorded. Such notification should be displayed prominently in every company vehicle within the eyesight of the driver.
Where employees are permitted to use company vehicles for personal use, employers should not continuously monitor the location of an employee’s vehicles outside agreed working hours. Employees should have the option to temporarily turn off the location tracker when engaging in personal activities. Additionally, while employers have a legitimate interest in preventing vehicle theft, employers should set the location tracking device so that it does not capture the location of the vehicle outside of working hours unless the vehicle leaves a widely defined circle (region or even country). Further, the location data should be accessible to the employer only when the vehicle leaves the predefined region
Event data recorders provide employers with a significant amount of personal data about the driving behavior of employees. Although improving employee driving skills is a legitimate employer interest, continuous monitoring of drivers through technology such as video cameras inside the cabin that record sound and video is excessive, and employers should employ other methods that prevent improper driver behavior. Such measures include installing equipment that prevents the use of mobile phones and installing safety systems like an advanced emergency braking system or a lane departure warning system that can be used for the prevention of vehicle accidents.
Disclosing Employee Data to Third Parties
Companies often transmit employee data to customers for the purpose of ensuring reliable service. For example, a delivery company may send its customers an email with a link to the name, location, and a photo of an employee making a delivery to allow the customer to recognize the employee as from the company. However, it is not necessary to provide the name and the photo of the employee to the customers and, therefore, the delivery company is not allowed to provide this personal data to customers.
Transferring HR Data Internationally
Employers increasingly are using cloud-based applications and services, such as human resources information systems (HRIS) and online employment applications. When company personnel located outside of the country in which an employee or applicant works or resides accesses one of these systems, that access is considered an international transfer of employee or applicant data. Thus, employers should ensure that they have a legal basis for the transfer of this HR data that ensures an adequate level of protection (i.e., standard contract clauses, binding corporate rules, EU-U.S. Privacy Shield, etc.).
Complying With the GDPR
The GDPR enhances the data protection requirements under current law and imposes new obligations for all data controllers, including employers. For example, the GDPR requires employers to implement data protection by design and by default. Thus, where an employer issues devices to employees, employers that are using tracking technologies should select the most privacy-friendly solutions. Additionally, the GDPR requires employers to perform a DPIA where the use of new technologies is likely to result in a high risk to the rights and freedoms of employees as monitoring technologies do.
Further, while the GDPR is intended to apply across the EU, the GDPR expressly permits each EU member state to establish its own specific requirements for the processing of employee personal data. The Working Party indicates that such rules should include suitable and specific measures to safeguard the employee’s human dignity, legitimate interests, and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of undertakings or group of enterprises engaged in a joint economic activity, and monitoring systems at the workplace.
Key Takeaways for Employers
- Because employees cannot freely provide consent to have their personal data processed, employers must justify the processing of human resources information based on other legal grounds such as performance of the employment contract, compliance with legal obligations, or legitimate interests of the employer. Thus, employers should analyze their current employee data processing practices to ensure that they have a legal justification for processing all employee data collected and processed.
- Employers monitoring employees within or outside of the workplace should avoid continuous or excessive monitoring. Rather, employers should conduct data privacy impact assessments to determine whether there are other, less obtrusive means to accomplish their legitimate interests, such as implementing preventative measures that block inappropriate employee behavior or providing employees with unmonitored, “private spaces” to conduct personal activities.
- The GDPR treats human resources data differently than consumer data and permits each EU member state to implement its own country-specific rules for employment data. Thus, employers should review the labor and data privacy laws in the countries in which they have employees and structure their GDPR compliance programs accordingly.
Compliments of Oggletree Deakins, a member of the EACCNY