European Union (EU) employee monitoring laws: what are employers allowed and not allowed doing in the workplace?

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Q: Do employers have the right to monitor employees’ computers, such as desktops, laptops, servers and their Internet activities?
A: Yes, employers have this right.

In general it is legal to monitor employees in the workplace (computers, cell phones etc.) with their agreement and awareness.

«Once an employer decides to monitor employees»,- here are the steps to follow: «… basic principles to ensure that the monitoring is done properly and in accordance with employees’ right to privacy:
• Transparency. Monitoring should be transparent. The employer must provide clear and comprehensive notice to employees about the monitoring;
• Legitimacy. Employers may monitor employees only to safeguard their legitimate interests, while not violating the employees’ fundamental rights;
• Proportionality. Personal data processed in connection with any monitoring must be adequate, relevant, and not excessive with regard to the purpose for which they are processed;
…» (‘Comparing the U.S. and EU Approach to Employee Privacy’ by Miriam Wugmeister).

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Q: Do employers have the right to monitor keystrokes, email’s content, and screens?
A: Yes, employers have this right with certain limitations.

Employers have the right to monitor emails, keystrokes, screens content only in case of employees’ agreement and awareness (see above) or in case of criminal activity:

«No covert e-mail monitoring is allowed by employers, except in case where specific criminal activity has been identified and the surveillance is required to obtain evidence and subject to the respect of legal and procedural rules.
If access to an e-mail’s content is absolutely necessary, the employer should take into account the privacy of people outside the organization receiving the e-mail as well as those inside. The employer, for instance, cannot obtain the consent of people outside the organization sending e-mails to its workers. The employer should make reasonable efforts to inform people outside the organization of the existence of monitoring activities to the extent that these people could be affected by them. An example could be the insertion of warning notices regarding the existence of the monitoring systems, which may be added to all outbound e-mails from the organization.

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Any personal data from or related to an employee’s e-mail account or his or her use of the internet that is legitimately stored by an employer must be accurate and up to date and not kept for longer than necessary. Employers should specify a retention period for e-mails in their central servers based on their business needs and have procedures in place to ensure that retention period is not exceeded. The employer must put in place appropriate technical and organizational measures to ensure that any personal data it holds is secure and safe from outside intrusion.» (‘Surveillance in the Workplace’ by Citizens Information).

Q: How employees are protected in the situation of monitoring?
A: There is The Data Protection Directive that provides the right to privacy.

There is legislation in EU according to which every person from the European Union (EU) has the right to personal privacy. For the employees (see above): employers have the right to monitor company’s electronic devices with certain limitations though.

« There is currently no specific EU legislation concerning the protection of workers’ personal data at work. However, two general EU Directives on personal data protection apply to workers. One (97/66/EC) concerns the protection of individuals with regard to the processing of personal data and the free movement of such data. The other (2002/58 which amends 97/66/EC) is about the processing of personal data and the protection of privacy in the electronic communications sector.» (‘Data Protection at Work’ by European Commission)

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«The Data Protection Directive (officially Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data) is a European Union directive adopted in 1995 which regulates the processing of personal data within the European Union. It is an important component of EU privacy and human rights law.
The right to privacy is a highly developed area of law in Europe. All the member states of the European Union (EU) are also signatories of the European Convention on Human Rights (ECHR). Article 8 of the ECHR provides a right to respect for one’s “private and family life, his home and his correspondence”, subject to certain restrictions. » (from ‘Data Protection Directive’).
In case of covert monitoring, you can apply ‘Data Protection Commissioner’.

Q: What professional lawyers suggest?
A: They suggest being reasonable when applying monitoring tool at the working place.

Professional lawyers suggest following 7 basic principles so the monitoring in place is used properly according to the EU laws. The principles are as follows (refer above): Necessity, Finality, Transparency, Legitimacy, Proportionality, Accuracy and retention of data, Security. Following those rules ensures that there is a business need for monitoring, that employees are aware of monitoring, that employees’ rights are not violated, employees’ personal data is protected.

Q: How to stay with the 7 basic principles when applying monitoring?
A: Understand your business reasons and goals. Follow 7 monitoring principles. Choose proper monitoring software.

At first this is necessary to have a good understanding of your business reasons and goals to remain business related when applying monitoring in place. For example, if you’d like to increase productivity by reducing personal Internet usage and idle times, then make sure chosen monitoring software does not do more than this. Seven basic monitoring principles describe very well what to follow while choosing your monitoring system. Any functionality like keystrokes recording, emails/chats/messages content recording does not help in any ways with estimating neither personal Internet usage times nor idle times. More about 7 basic principles you can read in articles by Miriam Wugmeister, such as ‘Comparing the U.S. and EU Approach to Employee’.

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More Information per Country
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Disclaimer
This article provides general information only. This information is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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