September 15, 2016
Data Protection in Employment Relationships
Data protection in employment relationships is a legal area of growing importance in Germany. In order to build trust and avoid legal issues, employers need to be aware of their obligations when collecting, processing and using their employees’ data.
Our legal info Data Protection in Employment Relationships aims to assist companies by illustrating the relevant legal norms and by giving practical examples.
Basic principles of employee data protection
The purpose of data protection is to protect the workforce from the misuse of their personal data – this also applies in the context of an employment relationship.
However, the protection of employees' personal data is not limitless, since it collides with employers' rights, which are also guaranteed by the German Constitution.
Prohibited unless explicitly permitted
The collection, processing and use of personal data is prohibited principally, unless permission is granted
- by the Federal Data Protection Act Council
- by some other regulation (e.g. works agreement), or
- by the employee him- / herself.
In situations where no special regulations apply, Section 32(1) page of the BDSG governs whether and when it is permissible to process data in the employment relationship.
The basic principle is that it is permissible to process the kind of employee data that are required to exercise rights and meet obligations under the employment contract if this does not disproportionately infringe on the employee's privacy.
The principle of restricted use
Employee data may only be used for the purposes laid down in Section 32(1) page 1 of the BDSG. Any subsequent use of these data for other purposes is only lawful in exceptional cases, such as preventing dangers to the state and public security or to prosecute crimes or safeguarding the employer's legitimate interests.
This makes it necessary to reconcile the legitimate interests of the employee with the employer's in the processing or use of data for a different purpose.
Participation of the works council
Pursuant to Section 80(1) number 1 of the Works Constitution Act (BetrVG), the works council must monitor the implementation of applicable laws and other legislation that benefit employees. This also includes compliance with the BDSG.
Section 87(1) number 6 of the BetrVG gives the works council a right of codetermination in the introduction and application of technical and surveillance facilities.
You can download a copy of our legal info Data Protection in Employment Relationships.