A new Opinion (WP249) on data processing carried out by employers in the employment context has recently been adopted by the Article 29 Working Party (A29 WP).
The A29 WP builds on its previous 2001 Opinion (WP48) and 2002 Working Document (WP55) on workplace monitoring. It seeks to provide guidance on balancing the legitimate interests of employers in data processing at work against the employees' expectations of privacy. The opinion reflects new and advanced workplace technologies and arrangements, including new forms of data processing (e.g. location data from a smart device) and remote working, which have contributed to systematic and potentially invasive employee data processing.
The A29 WP's opinion is primarily concerned with the current legal framework and emphasises the importance of taking into account the fundamental data protection principles enshrined in the Data Protection Directive 95/46/EC (Data Protection Directive). It also looks at the additional obligations placed on employers by the General Data Protection Regulation (GDPR) including data protection by design.
Data Protection Directive: data processing requirements for employers
Before carrying out any form of employee monitoring, employers should take note of the following:
- Consent: for the majority of workplace data processing, employers are unlikely to be able to rely on the consent of the employees as a legal basis for such processing due to the imbalance of power between employers and employees. Therefore the consent of the employee should be a last resort option and where possible employers should find another legal basis to rely on for processing the personal data. Furthermore, even in cases where consent can constitute a valid legal basis (i.e. if it can be concluded that it has been freely given), the consent needs to be a specific and informed indication of the employee's wishes. A lack of action on the part of the employee can therefore not qualify as consent to allow such processing.
- Legal obligation: when meeting obligations imposed by employment law which necessitate the processing of employee data (e.g. for the purpose of tax calculation and salary administration), employers can use such a law as the legal basis for data processing. Employee data processing may also be necessary for the performance of the employment contract (e.g. to pay the employee).
- Legitimate interests: employers can rely on legitimate interests for the purpose of employee processing as long as such processing is legitimate and proportionate to the business need and there is a proportionate balance between the legitimate interests of the employer and the fundamental rights and freedoms of the employees. Employee processing should therefore be carried out in the least intrusive manner while utilising appropriate measures to ensure a balance with the fundamental rights and freedoms of employees, for example by ensuring that any employee monitoring is proportionate in terms of the length of time employees are monitored for, the times of day that monitoring is undertaken and the geographical extent of the monitoring.
- Transparency requirements: employees should be informed about any monitoring activities undertaken, the purpose for such activities and any other information necessary to achieve the fair processing of employee data. To that end, employers must ensure that their acceptable-use and privacy policies are clear and accessible and the A29 WP recommends involving employee representatives in the drafting and review of such policies to ensure that these objectives are met.
- Automated decisions: data subjects (in this scenario employees) have the right not to be subject to a decision based on automatic processing of data intended to evaluate personal aspects, such as work performance unless such a decision is necessary to enter into a contract or for contract performance or the employee has provided her/his explicit consent.
General Data Protection Regulation: new obligations for employers
The GDPR entrenches and restates the principles of data processing at work under the Data Protection Directive, with some key additional requirements which are discussed below.
- Data Protection by design and default: data controllers (in this scenario employers) are required to implement data protection by design and by default. If, for example, an employer issues devices to employees for them to use for work or other purposes, care must be taken to employ the most privacy friendly solutions in cases where tracking technologies are involved.
- Data Protection Impact Assessment: the GDPR also requires employers to carry out a Data Protection Impact Assessment (DPIA) prior to carrying out any data processing that poses a specific privacy risk due to its nature, scope context or purposes for example before installing CCTV or implementing monitoring of employees.
Under the GDPR Member States are permitted to introduce further legislation in relation to the processing of employee data in the employment context. The A29 WP states that the legislation that Member States may decide to provide may relate to (among other issues) the performance of an employment contract, the management, planning and organisation of work, health and safety at work and equality and diversity in the workplace. When such legislation is introduced, particular regard should be given to the employee’s human dignity, legitimate interest and fundamental rights of employees.
Guidelines on using technologies in respect of specific types of workplace monitoring
The A29 WP has considered various scenarios in the opinion which describe how new and advanced technologies are used to enable employee monitoring in the employment context and addresses areas that employers should consider when conducting such monitoring. Some of these are stated below:
- Use of social media for recruitment: employers need to have a legal ground for accessing an individual's social media profile (e.g. a legitimate interest) and should not assume that they can check the social media accounts of individuals merely because they are publicly available. Employers should further take into account whether such a profile is related to business or private purposes and whether data processing in this context is necessary and relevant to job performance.
- Data processing resulting from monitoring ICT usage: the A29 WP considers that there is a need to take into account many modern technologies that have enabled more intrusive ways of monitoring the workplace (for example where employers monitor phone calls, internet browsing, email, instant messaging, VOIP, etc.). One illustration of this is the use of a TLS inspection appliance to decrypt and inspect secure traffic for the purpose of detecting malicious activities. This action can also record and analyse the entirety of an employee's online activity. Employers should consider whether such processing is proportionate and whether there are any steps to mitigate the impact of the processing prior to utilising such technologies and applications. Before deploying any such technologies, the A29 WP recommends carrying out a DPIA and putting in place clear acceptable-use policies providing details of the processing.
- Employee monitoring outside the workplace: the rise of remote working and the shift towards the use of employees' own devices in the workplace (known as "bring your own device" or “BYOD”) can pose a risk to employers as corporate data moves away from employers' premises. The A29 WP considers that this should be addressed through using proportionate, non-excessive measures (e.g. keeping data contained within a specific app in case of transfers between external devices and the employers' network, ensuring that appropriate BYOD policies and procedures are in place and providing adequate training on such requirements). Furthermore, when individuals are working remotely out of the office, if employers intend on introducing any monitoring technologies such as logging keystrokes and mouse movements they must ensure that they have a legal basis for doing so and such monitoring is not disproportionate or excessive.
- International transfer of employee data: the opinion also discusses the international transfer of employee data in particular in relation to cloud-based systems. The opinion states that any data transfers outside the EU/EEA should be "limited to the minimum necessary for the intended purposes" and must take place where an adequate level of protection is ensured.
Although the A29 WP opinion is non-binding, it reflects the views of European data protection authorities and therefore must be considered by organisations when processing employee data in the workplace or for employment purposes. The opinion also provides practical guidance in an area which has developed exponentially in recent years; organisations should therefore use the opinion as a reference point when creating compliance audit processes and internal data protection policies in preparation for GDPR compliance.
Contributor: Jenai Nissim
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.