Category Archive: Data Protection

Demonstrating readiness to work every three minutes is unreasonable

On 10 August 2017 the Labour Court of Berlin stated that it is unreasonable to require a taxi driver to press a button at short intervals of time in order to control the employee’s readiness to work (judgement of the Berlin Labour Court dated 10 August 2017, docket number 41 Ca 12115/16). The employee works …

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Inadmissible evidence through installation of a keylogger

Using a software keylogger may not always be much help in supporting a termination for cause, as a recent case before the Federal Labour Court shows (judgment dated 27 July 2017, docket number 2 AZR 681/16). The employee had worked for the employer since 2011. When opening up its network, the company informed employees that …

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The Works Council’s right of co-determination regarding the Employer’s Facebook presence

The German Federal Labour Court (Bundesarbeitsgericht) decided on 13 December 2016 that the Works Council has a right of co-determination when the employer’s Facebook page allows other users to post comments, which are related to the behaviour and performance of the employees. The employer operates a blood donor service. The doctors working at the blood …

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Investigations by a Detective create (not only) Data Privacy Issues

The Higher Labour Court of Baden-Württemberg (Landesarbeitsgericht Baden-Württemberg, docket number 4 Sa 61/15) decided on 4 July 2016 that the employer´s instruction of a private detective to investigate its suspicion of unlawful behaviour of its employee infringed German data privacy rules. The detective´s findings must not be used as evidence of the employee´s breach of …

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Background checks aka pre-employment screenings in Germany

Many companies refuse to settle for the information provided by the applicant on job applications and in personal interviews. So-called background checks (also known as “pre-employment screenings”) therefore enjoy great popularity among employers in the US and the UK as a measure to investigate the potential employee’s background. This screening may be conducted by the …

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Social Media in the employment context and the new EU General Data Protection Regulation (GDPR)

Sharing personal and work-related information on social media sites has become a prevalent practice for many employees nowadays. Likewise, social media is also used by employers as a platform to connect with the public (e.g. for employer branding and in recruitment) and to communicate within the workforce. However, both sides should be aware that the …

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Video surveillance is permissible in a shop’s back room with social area

According to the Labour Court Oberhausen (Arbeitsgericht, ArbG), video surveillance of a storage room with an area used by the employees to spend their work breaks is permissible. The employee cannot claim compensation for breach of privacy or file for injunctive relief. In the relevant case the employer monitored the shop’s back room via video …

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Browser history analysis without specific employee consent

An employee’s entitlement to privacy and data protection in the workplace is one of the most frequently discussed topics in employment law. Many employers allow, or at least tolerate, private internet use in the workplace to a reasonable extent. If the employer instead opts to prohibit all personal use of internet in the workplace, an …

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Employee data protection – an increasingly onerous task?

In Brussels, the EU Commission, the Council and the Parliament are currently negotiating the final version of the General Data Protection Regulation (GDPR) in what is known as the trilogue discussions. Whilst there are still considerable differences between the three drafts in play one thing is sure: together with the individual fines, reputational implications for …

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Corporate Email Correspondence As Admissible Evidence?

The legal boundaries regarding the screening of an employee’s corporate email account and questions concerning the admissibility of those emails as evidence in court (eg in a wrongful dismissal lawsuit) have not been finally resolved. No express evidence exclusion rule is laid down by law, either in the Civil Code or in the Labour Court …

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