European Union: Be Prepared Update On EU Employment Data Privacy Laws

Article by André Zimmermann, Christian Schröder and Laura Becking

Global companies face stricter rules on employee data privacy, in particular when using social media and internal monitoring tools. It also now becomes clearer that many EU Member States will use the opening clause of Art. 88 General Data Protection Regulation ("GDPR") to re-implement their "old" data privacy laws.

Use of Social Media And Employee Analysis Tools Under GDPR

Recently, the Article 29 Working Party ("WP29"), the expert group of European data protection authorities, published its opinion on the upcoming changes relating to data privacy at the work place. It explains what employers should do for ensuring compliance with the GDPR and provides guidelines for the use of information found on social media platforms – such as Facebook or LinkedIn and for electronic monitoring of employees.

Recruiting – Differentiation Between Private and Business Profiles

At first glance, it may come as a surprise that the WP29 advises employers not to inspect social profiles of prospective candidates, even if they are publicly available. This impression fades only slightly when considering the WP29's four main principles, i.e. that all processing activity needs to be (1) necessary, (2) fair to the (prospective) employee, (3) proportionate to the concerns raised, and (4) transparent.

It is comprehensible that the employer needs to take into account whether the applicant's social media profile is meant for business or private purposes. Personal profiles (e.g., regular Facebook profiles) will most definitely not meet the requirements for the collection and processing of the personal data contained in it.

However, it does get more complex if employers want to use information from a business profile (e.g., on LinkedIn or Xing, a popular platform in Germany) for their screening process, as the legitimacy depends on the specific circumstances.

In any case, the employer may only collect data which is relevant to the performance of the job in question. The WP29 gives a (rather vague) example according to which the employer may be allowed to use information if it is needed to "assess specific risks regarding candidates for a specific function" and, in addition, if the applicants are informed about such collection/processing of data.

To be on the safe side, employers should include information about a possible review of the applicants' (publicly available business) profile in their job adverts or at the beginning of the text of an online application form. The WP29 explicitly mentions the text of the job advert as a possibility to inform the candidate of any vetting of social media profiles. Additionally, the data collected should always be verifiably relevant and necessary. Lastly, all data should be deleted as soon as they are no longer relevant for the recruiting process.

The WP29 holds that for the majority of employee data processing consent will not be a valid legal basis to process employee data due to the power imbalance between employee and employer. The situation between an applicant and the potential employer is comparable which is why there is only little room consent by a job applicant will be seen as being freely given.

The WP29 recommends not to request consent to access the private social networks. Also the new German data privacy act severely limits the ability of obtaining consent and only permits consent where based on specific evidence there is reason to assume that the employee does not grant consent because of the inherent imbalance of powers but because of own advantages the employee may receive. The advantage for an applicant of being considered for an open position likely does not qualify as such an advantage that would permit obtaining consent.

The WP29 did not address the question if accessing and reviewing profile data that have been received from a job applicant without request. For example, job applicants may, without any specific request, submit a link to their instagram profiles. The use of such information seems, however, permissible.

Current Employees – Inspection Cannot Be Justified

The WP29 also advises employers to not look into the profiles of current employees, as the employer will hardly ever have a correspondent legitimate interest. Even though the GDPR generally allows data processing based on the data subject's consent, the consent given by an employee will most likely not suffice to justify an inspection. This is because employees usually depend on their job and cannot freely give or refuse consent if they have to worry about adverse consequences of their decision. Employers should thus not ask for applicant's or employee's consent to connect so that an employer gets full access to the individual's social network profile.

The WP29 makes a brief reference to employers requiring use of social media accounts and limits on requiring use of personal social media accounts. In the tech industry and particularly sales the use of social media for work is common and more or less required, employers often require personal accounts of employees to be used. As a rule, a social media profile can be set up in the employee's name. However, it must be ensured that the employee still has the option to have a separate "non-work" profile that they can use instead of the "official" employer-related profile.

Former Employees – Checking on Post-Contractual Duties

The WP29's opinion on the screening of former employees' profiles is faintly less strict. It considers the employer being entitled to monitor business profiles if it is necessary to protect their own legitimate interests (e.g. to ensure compliance with post-contractual non-compete clauses) and if there are no other (less invasive) means available to protect the employer's interests. Yet again, the data subject must be informed about the extent of the screening.

Monitoring Tools – Restrictive Requirements

According to the WP29's opinion, companies should be very careful before deploying any kind of monitoring tools. The WP29 stresses that the use of monitoring tools most often can only be justified based on a balancing of interest test. If so, the processing must be strictly necessary for a legitimate business purpose and must be proportionate to the employee's privacy interests.

As a rule, data processing at work must be proportionate to the risks companies are facing. So for example, instead of continuously monitoring all internet activity of employees, blocking specific websites would be advisable. The use of facial recognition technologies at the workplace, monitoring mouse and keyboard activities and may be deemed disproportionate, however, depending on the circumstances.

In general, employees should be informed of the existence of any monitoring and the purposes for the monitoring. Policies relating to workplace monitoring must be clear and readily accessible.

Employers also observe the principle of data minimization when deciding on the deployment of new technologies. Information on employees should be stored for the minimum amount of time necessary and deleted when no longer needed.

The employer should also notify employees about the use of monitoring company vehicle usage, collecting data about both the vehicle and the employee using it, in particular tracking data about the location, and driver's behavior where the private use of the vehicle is allowed. Data recorders used to prevent accidents should not lead to a continuous monitoring of the individual.

Last but certainly not least, companies have to bear in mind that use of cloud applications will often involve international transfer of employee data. Any data transfer to third countries may only take place where an adequate level of protection is ensured. Employee data transferred to outside of the EU/EEA and accessed by other entities within the organization must be limited to the minimum necessary for the intended purposes.

Conclusion

In conclusion, the GDPR may pose some more difficulties for employers, especially, when it comes to recruiting and monitoring. Even though the WP29's opinion is not binding, many supervisory authorities use it as framework. The final interpretation of the GDPR will nevertheless be provided by the European Court of Justice.

National Employee Data Privacy Laws 2.0?

Article 88 GDPR allows the EU member states – at least to a certain extent – to put some of the GDPR's regulations regarding employee data privacy in more concrete terms.

The German legislature already used this option and decided on the reformation of the National Data Privacy Law (Bundesdatenschutzgesetz – "BDSG") which will enter into force at the same time as the GDPR. However, although the new BDSG was revised, the new § 26 BDSG largely copies the current § 32 BDSG (to the extent it is in line with the main data processing principles of the GDPR) which regulates the processing of employee data. This is basically re-adopting Germany's current employee data privacy laws.

Austria is supposed to follow a similar approach. Also France and Italy are currently preparing national data protection laws that make use of the openings the GDPR provides. Due to a recent legal amendment in France (Article 91 of the Law no. 2016-1547 of November 18, 2016 in connection with the Law no. 78-17 of January 6, 1978 on Information Technology, Data Files and Civil Liberties), plaintiffs may now take class actions in case of infringements regarding (employee) data privacy. Employers should thus be aware of an increased risk of such class action at any time, even when "only" recruiting new employees.

In sum, it appears that EU employee data privacy law will be more fractioned which makes it indispensable for global companies to always also check for local compliance.

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.

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