The rise of teleworking has led to a considerable increase in the use of tools to monitor employee activity. Recording keystrokes, turning on the webcam all the time, monitoring e-mails: how is the monitoring of employee activity regulated?
During the first containment, companies' interest in remote monitoring systems increased by 500. And almostone in two employees employees are monitored by their employers. An overview of the more or less legal practices of companies with Odile Blandino, a lawyer in social law.
Can the employer set up a tool to monitor employees' activity?
Yes, the employer must inform the ETUC and the employees. The employer must also declare these tools in the register of processing activities, [a written record to document the compliance of the data processing]. The tool used must be proportionate to the purpose and have a defined objective, such as monitoring the employee's working time from a distance. As an example, virtual badging is allowed because it allows the employee's working hours to be checked.
What is considered illegal about remote employee monitoring?
Constant, permanent and therefore disproportionate surveillance of the employee is prohibited. Forcing the employee to work permanently with his or her webcam on, forcing the employee to click regularly to show that he or she is present at the workstation, taking remote screen shots at random intervals, recording keyboard and mouse activity (keyloggers) or taking photographs of the employee are prohibited practices. This is an abusive exercise of the right to monitor the employee's activity, which may cause damage related to the invasion of privacy.
Can the employer force the employee to turn on the video camera?
No. According to the CNIL, "its activation must in principle be left to the discretion of employees insofar as, in most cases, participation via the microphone is sufficient". However, the regulatory body specifies that "in certain specific cases such as an HR interview, a meeting with external clients or the presentation of new arrivals, the employer may impose the activation of the camera". The CNIL also suggests the use of background blurring during videoconferences, to better protect the privacy of employees.
Can the employer access the employees' work computer and telephone?
Yes, because these tools are used in the professional field. The employer also has the right to read the employees' business e-mails. If an employee is exchanging private messages via his personal mailbox, he must indicate "private" or "personal" in the subject line to ensure that his messages are confidential.
What are the risks for the employer in case of non-compliance with the rules on supervision?
If the employee appeals to the CNIL, the body may issue a formal notice to the employer or impose a fine. Other sanctions may target software with illegal features. The employee may also bring an action before the industrial tribunal and obtain damages for the harm suffered as a result of the conditions of performance of his or her employment contract generating an illegal control, as well as possible harm to his or her health (stress, anxiety, etc.).
Does the employee have a right of review of the information collected?
Yes, according to the RGPD, the General Data Protection Regulation, employees must have access to their data and be able to have it corrected if they wish.
In the event of a dispute, can the employer use the information obtained against the employee?
If the tools used by the employer are regulated, proportionate and do not lead to abnormal surveillance of the employee, the evidence gathered can be used against the employee. It must be possible to prove that the employee has abandoned his or her teleworking post: if the employee never logs on, the employer can rely on the data linked to his or her connection to prove this. On the other hand, any information obtained illegally by the employer cannot be used against the employee.