Will the entry into force of the GDPR force the employer to remove cameras in the workplace?

In view of the above, the legality of video monitoring in workplaces has become doubtful, the use of which has not been legally regulated so far. The following questions arose: Do I need employees' consent for monitoring? What if the employee does not consent to the monitoring or withdraws this consent in accordance with his right?

Video monitoring in the workplace will be legal

The new act on the protection of personal data of May 10, 2018 (Journal of Laws 2018.1000), which in art. 111 added new regulations to the labor code (art. 22 2 and 22 3 ), finally resolved this issue.

Pursuant to Art. 22 2 §1 of the Labor Code from May 25, 2018, the employer may legally introduce video surveillance on the premises of his workplace or around it only if such a solution is guided by the appropriate purpose of the employer, i.e. "(...) it is necessary to ensure the safety of employees or protection of property or production control or keeping secret information, the disclosure of which could harm the employer (…) ”. In all other cases, monitoring of employees while working without their consent is prohibited.

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Although video surveillance is allowed in some cases, the employer must remember to protect the privacy of its employees and, as a rule, cameras cannot be placed in sanitary rooms, cloakrooms, canteens, smoking rooms and rooms made available to the company's trade union organization. Exceptionally, these rooms may be monitored if it is necessary to achieve the employer's previously indicated goals, with the proviso that such registration will not violate the dignity and other personal rights of the employee, as well as the principle of freedom and independence of trade unions, and in particular, the employer will apply the techniques of registration. making it impossible to recognize people staying in these rooms.

What obligations must an employer fulfill to monitor its employees?

The legal use of video monitoring will be possible if the employer implements an appropriate procedure in his plant, and more precisely - establishes the goals, scope and method of monitoring in the collective labor agreement or work regulations. If the employer is not covered by a collective labor agreement or is not obliged to establish work regulations, this information should be included in the announcement.

In addition to the above, the employer is obliged to inform employees directly about the introduction of monitoring within 2 weeks before its launch, and in the case of new employees, to inform in writing, before allowing the employee to work.

See: GDPR in the company

The employer must also remember to properly mark the monitored area, using appropriate graphic signs or audio announcements, which are to inform about the presence of cameras in a visible and legible manner. This obligation should be fulfilled at least one day before the monitoring is launched.

How long can the employer keep the surveillance recordings?

As the surveillance recordings contain the personal data of the recorded employees, the employer may only process them for the purposes for which they were collected. Therefore, it cannot store them for more than 3 months from the date of recording. The exception are the recordings of the picture, which may be used as evidence in court proceedings. Then the period of their storage is extended until the final termination of the proceedings. After the expiry of the above-mentioned deadlines, the image recordings obtained from the monitoring containing personal data shall be destroyed, unless separate regulations provide otherwise.

Can the employer control his employees' e-mails?

It would seem that sending private messages from the work e-mail is an individual matter of the employee and protected by the confidentiality of correspondence, is not subject to control by the employer.

Nothing could be more wrong.

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From May 25, 2018, the legislator "equipped" the employer, under certain conditions, with the possibility of legally monitoring the employee's e-mail. Pursuant to Art. 22 3 of the Labor Code, the employer may introduce an inspection of the employee's official e-mail if it is necessary to ensure work organization enabling full use of working time and proper use of the work tools provided to the employee.

It follows from the above that if the employer notices the employee's slowness or decrease in productivity, he will be able to check whether all messages sent by him are for a business purpose. Of course, the employer must remember that such monitoring may not violate the confidentiality of correspondence and other personal rights of the employee.

As in the case of video monitoring, the introduction of e-mail monitoring should be preceded by appropriate regulations in internal company files and communicated to the employee in an appropriate form.