Wolf Theiss

CAMERA, GPS, FINGERPRINT – DIGITAL WAYS OF MONITORING EMPLOYEES

Budapest, 27 May 2015 – Camera surveillance, fingerprint identification, GPS tracking: The development of technology has enabled the monitoring of a wide range of workers; however, employers can easily breach the law during the practical implementation of these methods.

The Labour Code allows employees to be monitored as far as their work-related conduct is concerned, but monitoring is considered lawful only if certain conditions are met. In what follows, through some specific examples from their practice, the associate of Faludi Wolf Theiss Attorneys at Law presents some border situations of surveillance in the workplace, especially in the area of the electronic monitoring systems applied, biometric identification and the determination of the geographical location of the employees in the workplace.

Under the law, the employer is entitled to check the employee as far as the employee’s employment-related conduct is concerned, so in this scope the employer is not required to ask for the permission of the employees and it is sufficient to provide information of the devices used in advance. In this context, the question often arises as to what is to be done if the advance notification thwarts the purpose of surveillance. A good example is when an employer would like to carry out secret surveillance to expose an internal theft or a breach of obligations. In accordance with the relevant decisions of the Supreme Court, when video and audio recordings made in breach of personal rights are used, the requirement of the proper execution of the law and the principle of the prohibition of abusing the law must be respected. Thus, the employee may demand that his or her personal rights, such as his or her rights to sound or video recordings, are observed by everyone, but the employee may use such rights only for their socially intended purpose and not for gaining undue advantages against the employer, such as preventing evidence against him or her from being used in court. Such evidence may be used in court especially in the event where the facts cannot be ascertained in any other way. And it is easy to see that employers typically make such recordings because they cannot prove the infringement by any other means.

On the flip side, anyone who makes or uses such evidence must reckon with the rules relating to personal rights under the new Civil Code, which entitle the employee to grievance awards, where only the fact of the infringement (illegal video and audio recording) should be proved and not that any damages have been caused. It is questionable in what amount the court establishes a grievance award in favour of the employee in such case.

Not even the camera can see everything: In the case of surveillance by camera – in accordance with the recommendation of the National Authority for Data Protection and Freedom of Information – the employer should primarily pay attention to ensuring that the angle of view of each camera is only directed to an area which is in connection with the objective of the data management. Therefore, no monitoring may be performed in any premises serving for taking a break (such as a canteen, a resting room) or in an area where possible observation would be in violation of human dignity (e.g. a toilet, a dressing room), excluding the period when nobody may lawfully stay in the area of the workplace. Monitoring the performance of work is also prohibited, except for work stations where this is justified for work safety or property protection considerations, such as in the case of dangerous production lines, laboratories, bank branches. In addition, the employer must certify that the employees have been notified in writing (including, for each camera, the purpose of the data management, and the area observed), and must place warning signs in the monitored area. It is important that new employees are informed before being employed, by means of a document separate from the employment contract. As a general rule, the recordings made must be deleted after three business days if they are not used, however, under certain circumstances, or in the case of some recording purposes, (such as the safe-keeping of hazardous materials, investment services, stock market activity) recordings can be stored for a period of thirty or sixty days as from the day on which they are made.

Fingerprint, voice, retina – only in special cases: Biometric identification is one of the fastest-growing identification methods today. Its main point is that it records unique characteristics which are different from person to person (e.g. retina, fingerprint, voice) and converts these attributes to a code which is then compared to other elements of a database, arriving at the identification of the person concerned. On the basis of the principle of data minimization (out of several data managements with the same purpose the one should be applied which least restricts the right of the given individual to the protection of his or her personal data), biometric identifiers can only be applied in particularly justified cases, since in the vast majority of cases the purpose of the data management may be achieved by other means (such as a card entry system).

GPS Tracking - limited solution: Typical examples of determining the geographical location include the tracking of the vehicle or mobile phone used by an employee to carry out work. It is important to know, however, that this type of monitoring can only take place in the case of positions relevant in terms of data management (such as couriers, cash-in-transit, sales assistants, truck drivers), thus its use in the case of office workers is obviously precluded. Besides, surveillance may be carried out only during the working time, thus if the employee is entitled to use the device made available to him or her by the employer for private purposes, the employee should be enabled to switch off the device used for his or her surveillance after the lapse of the working time. In this case, it is especially important to draft the employer’s regulations which regulate in detail the cases where the GPS may be turned off, and which sanction irregular use.

In summary, we can say that there are many methods to monitor the employees, each working well in its own way in practice. With the development of technology, the responsibility of the employers to choose the most appropriate surveillance method in the given case has increased. The easiest way for the employer to avoid the examination of the Data Protection Authority and the possibility of receiving a high amount of privacy penalty is taking into account the considerations relating to the preferred method and choosing a surveillance method which is suitable for achieving the objective while least restricting the personal data of the employees" – explains Barnabás Buzási, Associate of Faludi Wolf Theiss Attorneys at Law.

For further information please contact

Barbara Fürchtegott
Barbara
Fürchtegott
Public Relations & Communications Manager
T. +43 1 51510 3808
Schubertring 6
1010 Vienna
Austria

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