Category Archive: Data Protection

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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Fake camera in the workplace – No co – determination right for works council

The works council does not have a co-determination right where the employer installs a fake security camera on the premises. This question was subject to a decision issued by the higher labour court Mecklenburg-Vorpommern dated 12 November 2014, docket number 3 TaBV 5/14. The employer, a clinic, had installed a fake camera at the back …

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Protection of confidential business secrets – Sharing sensitive company data among works councils of group companies

Passing on business secrets by employees to third parties may be a criminal offence and therefore potentially justify an immediate dismissal for cause. In a recent ruling the regional labour court (Landesarbeitsgericht, LAG) Schleswig-Holstein decided that sharing sensitive company data among works councils of group companies may not always justify a dismissal (March 4th, 2015; docket …

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