The extent to which an employer may monitor employees using electronic technology has received a great deal of attention, whether such monitoring involves reviewing employees' emails, monitoring employees' telephone calls, or using recording devices to engage in employee surveillance. A recent decision by the Federal Labor Court provides some additional insight into the measures an employer may take to monitor employees. This case specifically concerned the video-recording of employees.
Use of Video Cameras in the Workplace
The employer was operating a large mail-sorting service in northern Germany. During a 10-month period, 250 customers had filed complaints against this mail sorter, as their mail had not been delivered. The employer concluded that a few employees were stealing mail—the only question was, which ones?
On a previous occasion, the employer had agreed with the works council to install a hidden camera because the employer had reasonable information that specific employees were stealing mail. This suspicion was confirmed when these individuals were caught stealing on camera. That situation was distinguishable from the case at hand, however, since the employer in this case did not have any indication of which employees were responsible for the thefts.
Involvement of Works Council and Conciliation Board
The employer contacted the works council about setting up video cameras in the workplace to assist it in catching the culprits. The employer was required to contact the works council because under German law, the works council has a right of codetermination with respect to "the introduction and use of technical equipment that is used to monitor the behavior or performance of employees." Without a doubt, the use of video cameras to determine whether—and which—employees were stealing mail constituted the "use of technical equipment."
The employer and works council were not able to agree on the specific use of such video equipment, so the matter was brought before a "conciliation board." In Germany, if the employer and the works council are unable to come to terms on a matter, they may call upon a conciliation board (comparable, in many respects, to arbitration). The conciliation board comprises individuals appointed by the works council and the employer in equal numbers, plus a chairperson mutually selected by the works council and employer. (If they are unable to agree on the chairperson, the respective labor court will make the selection.)
Conclusion of Works Agreement
The conciliation board put together a specific works agreement setting forth guidelines for the employer's use of the video cameras. These guidelines included the following:
- The purpose of installing the video cameras was to minimize the employees' theft of mail, as this was ruining the employer's reputation. The video cameras were to be used only to identify the employees who were stealing the mail and to prevent continued theft.
- The 13 video cameras were to be installed in specific locations; also, the cameras were not to include audio recorders.
- The equipment for adjusting the operation of the cameras was to be stored in a safe that could be opened only with two keys; one of the keys was to be in the employer's possession, while the other was to be in the works council's possession. This was to prevent the employer from unilaterally changing the location or number of cameras.
- The use of the cameras was to be stopped as soon as the culprits were identified.
- All recordings were to be deleted within 60 days unless such recordings were needed for evidence to prosecute the culprits.
- The employees were to be informed of the use of the cameras; any newly hired employees were to be informed of the cameras by receiving an information sheet.
While putting together the terms of the works agreement, the conciliation board had to observe Germany's Federal Data Protection Act (as the surveillance of employees using video cameras is specifically governed by this statute). It also had to weigh the interests of the two sides: the employer's need to keep mail from being lost, stolen, or damaged; to protect customers' and suppliers' property; and to ensure that mail remained unopened (as required by law) against the employees' constitutional right of having their personal rights protected in the workplace, i.e., their right of not having their privacy invaded. This balancing test could be satisfied only if the principle of reasonableness was observed.
Principle of Reasonableness—Action Taken Must Be Suitable, Necessary, and Proportionate
How can an employer be certain that it satisfies the principle of reasonableness? The employer must ensure that (i) the action to be taken (using video cameras to engage in employee surveillance) is a suitable measure for attaining the sought-after goal (ensuring that mail does not disappear), and the parties must be given a bit of leeway to determine whether a measure is indeed "suitable"; (ii) the action is necessary (an action is deemed to be "necessary" if no less-intrusive measures are available); and (iii) the action is not disproportionately intrusive, taking the totality of the circumstances into consideration. Though the court held that one aspect of the works agreement drawn up by the conciliation board did not satisfy the principle of reasonableness, it concluded that overall, the works agreement did satisfy this test, and accordingly, the employer was permitted to use the video cameras to monitor the employees.
If an employer wishes to monitor its employees through the use of electronic equipment, it must remember that it may not take an action unilaterally; the works council has a say in such matters. Also, any measure taken by employers must be reasonable and proportionate and must take into consideration the employees' constitutionally protected personal rights. In all likelihood, failure to observe these fundamental obligations will not only cause the employer to be called before a labor court, but also subject the employer to a fine for violating statutory obligations—most notably the Federal Data Protection Act and the Labor- Management Relations Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.