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Monitoring in the workplace: what is the employer allowed to do?

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A large number of scandals in recent years have brought the subject of surveillance into focus. Surveillance in public places can ensure safety. But how is it with Monitoring in the workplace out? How far can the employer go, which areas can be monitored by cameras? Who can look into the worker's pocket? The fact is that not every employee deals with the employer's working hours or property with confidence. What is sometimes belittling as Mouth robbery can take on terrifying traits. Conversely, some employers also exceed the limits of data protection and personal rights. You can find out what you should know here.

➠ Content: This is what awaits you

➠ Content: This is what awaits you

Surveillance in the Workplace: A Question of Trust?

Trust is good, control is better - that's an old popular saying. Actually, the working relationship between employees and employers should be characterized by trust. The trust namely that the employee is the agreed working hours actually works and not through coffee and cigarette breaks, Endless calls wasted more with family or the like. The trust that the company's property will be respected - regardless of whether it is the usual equipment of an office desk or the range of products on the shelf.

In the past, some companies have had particularly severe problems with employees who seem to require monitoring. Drastic cases of Theft and fraud not only add to a company economic damage zu - German companies with more than 50 employees suffered around seven billion euros in damage from theft and embezzlement between 2013 and 2015, estimates the auditing firm KPMG.

Such incidents also depress motivation and work ethic among employees, which in turn is a lower productivity entails.

Companies that do not always mean things so well with their employees therefore resort to measures that go far beyond what is legally justifiable. But what exactly is it legal allowed? Which monitoring in the workplace does the employee have to accept, which can he defend himself against?

Control employees: what is allowed?

If all Work processes run smoothly expire, there is initially no reason for an employer to distrust his employees - unless he is obsessed with an extraordinary addiction to control.

At the moment, however, when certain Disruptions in the workflow show, it is understandable that the cause must be investigated. From a legal point of view, it is completely irrelevant whether a paper clip, a ballpoint pen or a laptop was stolen.

In principle, of course, an employer has an interest in protecting his property and Trade secrets to protect. But not only your own products should be protected against theft. Just as detrimental to that work atmosphere are of course also thefts that are committed by colleagues among each other.

Surveillance measures related to this may be justified if they relatively are. The employee then has to accept monitoring if the employer's interest Personal rights of the employee predominates. The following measures are common:

  1. Pocket controls

    Bag checks are an effective means of protecting company or private property. They interfere with the privacy of the respective employee, but are possible under certain conditions:

    • It has to be urgent suspicion are present.
    • It should randomly be controlled, that is, after Random principle different employees are controlled. A specific employee may only be checked if there is serious suspicion.
    • The consent of the Works council is required.

    Only areas that are not directly on the body may be checked separate pockets. In justified cases and in a non-visible place, an employee can also be asked to submit his Pants and jacket pockets to drain.

    Nevertheless, the control is allowed not with coercion be performed. Only the police are allowed to check against the will of the employee.

  2. Camera surveillance

    In principle, covert surveillance is not permitted. It is considered to be a major intrusion into the Personal rights rated. In specific cases of suspicion, if only a recording with a camera can help to solve a criminal offense, the Federal Labor Court allows clandestine surveillance.

    That may be the case when it comes to Embezzlement, theft or assault goes.

    Exceptions to this rule, however, are recordings in changing rooms, lounges and toilets, as they are the Privacy violate. Monitoring is absolutely permitted in business premises if this is indicated. Often one reads a sign like "This sales room is monitored by cameras."

  3. working hours

    The control of the working time through timesheets or time clock is nothing unusual. It can be done with magnetic cards, but also requires the approval of the works council.

  4. phone

    The secret tapping of phone calls is clearly prohibited. A prerequisite for such monitoring is a company regulation or a note in the employment contract to which the employee must clearly agree - preferably in writing.

    The monitoring of the telephone means an interference with the personal rights, not only of the employee, but also of his interlocutor, who also has to be asked for permission. This is possible for business calls, but not for private ones, so they must not be listened to or saved. Saving data like Telephone numbers, time and duration of the call can also be problematic for business discussions under data protection law.

    In such cases, however, the reason and proportionality decide: if, for example, the employee is currently being trained and the monitoring is to control this process, it can be appropriate under labor law. Random checks on business phone calls are also legal. Can the employer excessive phone calls uncover through his controls, the employee could face problems due to working time fraud.

  5. GPS

    Monitoring in the workplace does not only affect jobs in the office: Even those who travel a lot for work can still be monitored, for example by GPS. What in the case of Ambulances and money trucks makes sense to everyone, becomes difficult when used in company cars and company cell phones, which can often also be used privately.

    So that will permanent monitoring Advancement made - also in the spare time - and that is again not allowed. An unauthorized personal reference also arises from the fact that individual vehicles can be assigned to specific employees. If at all, GPS tracking may only take place during working hours and only with the express consent of the employee.

  6. Internet

    Acquiring the destination address and reading it business emails are allowed to the employer. He may forbid Internet use for private purposes: Then private e-mails and private surfing on the Internet are also prohibited.

    Excessive internet surfing can be a problem not just because you don't do your job, you get by massive downloads also paralyze the server. It is possible here to block some Internet pages or to restrict them to certain pages in advance.

    In the event of a usage ban for private emails the employer may randomly check whether the prohibition is being observed. If the employer still finds private e-mails, they are still taboo for him, he has to come along criminal consequences count when he reads these mails.

    If there is no explicit prohibition of private use, the employer is not allowed to read private e-mails. The employer then takes on the same function as a Service provider, such as Gmx or Telekom.

    However, there is still Exceptions: Then namely, if ...

    • there is strong suspicion that the employee is divulging business secrets,
    • a virus is to be fended off or
    • a criminal offense can be detected.
  7. Surveillance by detective

    Here, too, ultimately the commandment applies again Proportionality. An employer may only refrain from having its employees monitored if there is only vague suspicion. Such surveillance would turn out to be illegal in court - any video recordings made would also lose theirs validity.

    However, if there is concrete evidence and a suspicion Facts is based, then it is even allowed to spy on. If the suspicion is confirmed, it may mean that an employee is responsible for the costs the surveillance must arise. Conversely, however, unjustified monitoring means for the employer that he is with Claims for pain and suffering must count.

The following applies to all monitoring measures: In companies with a works council, according to Section 87 (1) No. 6 of the Works Constitution Act (BetrVG) Say. For an employer, it can unpleasant consequences if this is not observed - previously made recordings or examinations can then turn out to be illegal.

But even if the works council has been informed, the measures must not be taken against superior right violate, for example the personal rights of the employee according to § 75 paragraph 2 BetrVG.

Video surveillance in the workplace: theft undetectable

This video surveillance case shows how strongly the right to privacy protects against surveillance in the workplace.

An employer fired an administrative employee without notice for theft. She was accused of having taken and pocketed 500 euros from a safe in an office inaccessible to customers. As evidence, the employer used a video recording which, according to him, showed the employee entering the office, opening the safe and removing the envelope.

The clerk was of the opinion that the clandestine video surveillance is not permitted has been. The recordings should therefore not be used against them. As a result, she filed a dismissal protection suit with the competent labor court.

The Labor Court Frankfurt am Main (ArbG Frankfurt a. M., judgment of January 27, 2016, Az .: 6 Ca 4195/15) decided that the video must not be admitted as evidence because it had been shot in secret. The court assessed this as a serious violation of the plaintiff's fundamental right.

The employer could thus the alleged theft not prove. In the absence of a reason for termination, the termination was therefore ineffective.

The problem in this case was the systematic, regular filming. The use of video recordings is permitted, among other things, if the employer suspects a certain employee of a criminal offense (Section 32 I 2 of the Federal Data Protection Act (BDSG)). Here he can use the video camera to film the alleged perpetrator, and so to speak caught red-handed in an offense.

Sandra Voigt, Assessor and editor at eRecht24.de, explains:

If any theft or possible damage can also be prevented in some other way, filming is no longer permitted. So if there is a milder means than video surveillance - for example keeping a cash book or restricting access rights to a few people - this measure is preferable. Only in this way can the basic right of those affected to informational self-determination be adequately protected.

In the present case, too, a cash book could have been kept or the group of people who had access to the relevant office and safe could have been restricted. In the absence of further evidence - for example witness statements - the alleged theft could not be proven.

Data protection and personal rights are paramount

In general, it should be noted that monitoring of employees is not permitted if they permanent and systematic is operated. An employer should use the means of surveillance cautiously and only in an emergency: Proportionality is repeatedly urged by the courts.

Incidentally, the EU General Data Protection Regulation, GDPR, which came into force in May 2018, does not change anything. It is only important that the employer is his Clarification and information obligations follows. He must ensure that his employees are made aware of and give their consent to certain workplace surveillance measures.

He can withdraw this from the employer and demand that his Data released to him and / or deleted become.

Ultimately, it is also in the company's best interest to have surveillance as that last resort of choice, as it could damage employees' trust in the long term and thus demotivate them.

If the employer violates the unjustified surveillance Violating the regulations at the workplace can result in severe penalties: up to 20 million euros in bus money or four percent of annual sales can be the result. In addition, the injured employee can make claims for damages.

Are employees allowed to record staff interviews?

Not only the employee, but also his employer is under the Protection of personal rights. This disregarded an employee who secretly recorded her boss on her cell phone during an employee interview. The conversation was about the unauthorized deviating working hours of the employee, who was reintegrating after a long illness and apparently made use of the flexitime rules applicable in the company.

During the lengthy conversation in which the employer warned of the failure or termination of reintegration, there was a 45 minute break. A few weeks after this conversation, the employee was fired.

The employee brought an action for protection against dismissal and presented the recording of the conversation after the break. This was followed by a further notice of termination by the employer. In addition, he filed a criminal complaint in accordance with Section 201, Paragraph 1 of the Criminal Code (StGB): Unauthorized recordings of non-public words are therefore with up to three years in prison or fined.

The State Labor Court (LAG) Rhineland-Palatinate (judgment of 03.02.2016, Az .: 7 Sa 220/15) evaluated the secret recordings as one serious breach of trustwho justified the pronounced termination even without prior warning.

How Armin Dieter Schmidt, General Counsel and Editor at Anwalt.de explains:

The secret production of sound recordings is a criminal offense in many cases. Corresponding recordings can hardly be used for evidence purposes, but even endanger the job. Here there is a violation of personal rights committed against the boss, because basically everyone can decide for themselves who is allowed to record their words on a phonogram and who is not.

Not only employers have to inform employees of their surveillance measures. In this case, the employee would also have her own to protect personal rights Ask the boss for permission have to. Conversely, if he had refused her, she could have refused the appraisal interview altogether.

Further legal ways of documentation would have been to bring a colleague or a representative of the staff council as support or to take written notes during the conversation.

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