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Employee data protection already applies before the employee has been taken on and therefore has to be observed before the employment relationship has been established, e.g. during the pre-employment screening process. In this process the employer uses social networks to learn more about the applicant. However, the fact that the profile information is in the public domain does not entitle the employer to take this information into account during the application procedure.
Even the right to ask questions during the interview is subject to the employee data protection regulations, whereby case law has previously taken this into account through the elaboration of permissible and impermissible questions. Impermissible are questions, which, for example, are closely connected to the private sphere of the employee, whereby in such cases the employee even has the right to lie. The storage of applicants' documentation, i.e. applicant pooling and the request for a certificate of good conduct are also subject to the data protection regulations.
Due to the technical possibilities available today, employers favour the use of secret video monitoring to identify criminal acts at the workplace. Although it is not forbidden in principle to make video recordings of employees, the significance of the encroachment into the privacy rights of the employees, however, requires a definite suspicion of a criminal act and a balancing of interests. In addition, measures which are less invasive must have already been exhausted and the hidden video monitoring must be the only method left available to the employer. Employers also repeatedly demand that their employees take drug or alcohol tests when they determine the employees are behaving strangely or smell of alcohol. Even if the employee agrees to the tests, this may constitute an infringement of data protection law. This is due to the fact that the situation of the employees in principle makes them dependent on the respective employer. As the drug test also does not give the employee any economic or legal advantages, consent to a drug test as a legal basis is generally ruled out. The circumstances which have led to the consent of the employee also frequently act against the permissibility of the consent. At the same time employee use of privately-owned devices during the worktime and the private use of company devices frequently leads to data protection issues.
Section § 26 of the new German Federal Data Protection Act (BDSG), which will come into effect on May 25, 2018 and from that time on shall serve to regulate employee data protection in conjunction with the EU general data protection regulations (EU GDPR), is based on the wording of the previously valid section § 32 of the German Federal Data Protection Act (BDSG). For this reason it can be assumed that acc. to section § 26 par. 1 sentence 1 of the new BDSG, in the future data processing with a whistleblowing system will continue to be permissible when the employee protects the employer against damages by making the criminal behaviour of other employees known. If there are actual indications that the employee has committed an offence against the employment relationship, acc. to section § 26 par. 1 sentence 2 of the new BDSG, the employer will still be permitted to access personal data to detect the offence.
Yes, for example, in cases where the employer has allowed employees to use a company computer also for private email communications. After the employment relationship has been terminated, the question arises as to whether the employer can access the email box of the employee, as it could contain customer enquiries alongside private correspondence. As this encroaches the private sphere of the employee, an appropriate balance must be found taking into account the conflicting interests of the parties on a case by case basis.
Dr. Michael S. Braun
Partner
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Alexander von Chrzanowski
Associate Partner
