Employee monitoring - What is allowed?

As a result of the Corona pandemic, many employees have inevitably become familiar with the home office situation. This makes it difficult for employers to control their employees' work behavior, and trust in conscientious work practices is required - or even the use of employee monitoring software.

In our latest blog post, we delve into the topic of employee monitoring and provide you with insight into what to consider when doing so.

According to a German study, one in five employees from an SME is already being monitored at work, with two-thirds of respondents having felt pressured to agree to monitoring. For eleven percent of respondents, surveillance began at the start of the Corona pandemic. However, this issue is met with criticism from many employees. The biggest concerns relate to invasion of privacy, negative impact on trust and morale, more stress for staff, and concerns about privacy rules. For 30 percent of people in companies without employee monitoring, the introduction of monitoring would even be a reason to switch. The survey also shows that in most cases, monitoring is not even necessary, as nine out of ten home office employees say they are equally productive or even more productive working at home than in the office.

When considering the use of surveillance systems, two fundamental interests play an important role: on the part of the employee, the right to privacy, and on the part of the employer, the right to monitor the employee with regard to the performance of the assigned tasks. Video cameras are a form that has been commonplace for a long time and is used, for example, in the retail trade to deter shoplifters. However, there are strict limits to what employee monitoring can accomplish. There must be an operational need that outweighs employee privacy.

In any form of monitoring, the employer is obliged to inform and educate its employees as to why and what is being monitored. Transparency regarding the monitoring tools is very important. The surreptitious installation of cameras and microphones is not permitted. Furthermore, the Labor Code prohibits employers from permanently monitoring employees without a specific reason.

In principle, the interception of telephone conversations is prohibited. However, conversations involving orders, reservations or similar may constitute an exception. Listening in for training purposes or performance checks is also permitted, provided it is announced in advance and all participants in the conversation give their consent. There may be two reasons for viewing emails: If access to the e-mails is necessary due to a deputy in case of absence, for example, or to check compliance with the IT regulations. Business e-mails belong to the employer and are to be processed by the employee in accordance with the document management instructions. The content of private e-mails, however, may not be viewed by the employer and should be deleted or marked as such. In suspected cases of data misuse by the employee, it is permissible to make a backup copy of the business e-mail account.

The same applies to digital monitoring as to all other types of monitoring. If there is a suspicion that an employee spends too much time on private surfing or sending e-mails, there too, the employee must first be informed about the monitoring of the computer and the Internet or mail consumption. If an employee is terminated because the employer secretly installed a monitoring program on the employee's computer, this is not legal and there is no basis for termination. However, if employees are informed in writing that occasional checks of Internet activity will take place, random checks may be made. It is advisable to record this in an employee regulation. If it then emerges that employees are spending too much working time on private matters, a warning may be issued, which may lead to termination in the event of a repetition.

Conclusion

The introduction of monitoring systems often leads to irritation and criticism from employees. However, these systems often serve not only to monitor the work activities of employees, but are also a safety measure as protection in the event of an emergency. However, they are only permitted if the employees are made aware of them in a transparent manner. It is advisable to include all monitoring options in the employment contract or in the IT regulations.