Big Brother is watching you: Developments in employment law

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The pervasive use of e-mail and the internet in the workplace has given rise to increased security issues, including data theft or misuse. But it has also given employers new ways to monitor employees, which leads to some interesting questions.

What is the legal basis for monitoring measures in Austrian employment law?
(i) The Austrian Labour Relations Act (Arbeitsverfassungsgesetz – ArbVG);
(ii) the Austrian Labour Law Harmonisation Act (Arbeitsvertragsrechts-Anpassungsgesetz – AVRAG).

Which monitoring measures are lawful?
The legal framework governing employee monitoring in Austria is complex. Control measures include any practices useful for monitoring employees and all technical facilities that are objectively suitable to monitor employees. The monitoring of job performance in general is a necessary and permissible method for the employer to ensure that its own products and services are successful. It is unlawful to implement monitoring measures that are offensive to human dignity.

The concept of human dignity must be defined in reliance on the general right to protection of personality and the fundamental values protected by the legal system, based on a balanced weighting of the interests of the employees and the employer. It is also usually permissible to monitor attendance.

Does a works council need to be consulted?
Yes. Under Section 96 (1) no. 3 ArbVG, the "implementation of control measures and technical systems for employee control" requires necessary participation if those measures (systems) affect human dignity. If no works council exists, these control measures can be adopted pursuant to Section 10 AVRAG with the consent of each and every employee.

Control measures include any practices useful for monitoring employees and all technical facilities objectively suitable for this purpose. Whether monitoring actually takes place or whether the employer subjectively intends to monitor its employees is irrelevant. In addition, only monitoring measures established on a lasting basis must be approved pursuant to Section 96 (1) no. 3 ArbVG. Ad hoc controls, eg in connection with a (potential) criminal offence, do not require employee participation.

Notably, not all monitoring measures established on a lasting basis require employee participation – only those which affect human dignity. Consequently, those monitoring measures which do not affect human dignity are ones with no co-determination. Monitoring measures which affect human dignity require co-determination; those offending human dignity are unlawful.

A shop agreement is required for video surveillance, because human dignity will be regularly affected, eg in case of permanent monitoring and recording of entrances and exits. The monitoring of changing rooms, toilets and the like violates human dignity and is completely prohibited. It is also forbidden to directly and permanently point a camera at an employee's workstation.

If monitoring measures which affect human dignity will be implemented without a shop agreement, the works council may file an injunction or obtain a preliminary injunction in court. If such an injunction is granted, the employer has to stop the monitoring measures immediately or the court may impose high penalties.

Is monitoring employee e-mails permitted?
A technical system to monitor work e-mails is permissible, but is a so-called "control measure" that requires a valid shop agreement between the works council and the employing company.

If no such agreement exists, the employer may not take the envisaged measures. Monitoring e-mails containing obviously private correspondence is prohibited (ie the e-mail header is marked "private"), if the employee is using his work e-mail account, even if works council or employee consent has been given. Systematic monitoring of personal e-mail accounts is not permissible under any circumstances.

Can the employer monitor external website access?
Most legal scholars believe that systematic monitoring of external website access is not permissible. It may be argued, however, that storing log files of accessed external websites is permissible, but might qualify as a control measure that requires the consent of the works council in the form of a valid shop agreement – or where no works council is established, the written consent of every employee. Nevertheless, monitoring external website access may be justified in certain individual cases by the legitimate interests of the employer or be permissible if private internet use is generally prohibited.

What is keylogger software?
Keylogger software records keystrokes and creates regular screenshots on a computer. If used by employers, keylogger software enables an employee's activities on a work computer to be monitored, including any use for private purposes. The German Supreme Court held that the hidden use of keylogger software violates employees' personality rights, and that findings obtained by such monitoring software cannot be used as evidence in court proceedings (BAG 2 AZR 681/16). The hidden use of such keylogger software to monitor employees is only permissible if the employer suspects that a certain employee has committed a crime or other serious breach of duty.

Any recommendations on how to deal with monitoring measures?
A lawyer's recommendation is simple: Lay down detailed rules for the use of e-mail and on whether private internet browsing is generally allowed or forbidden and to what extent. Conclude a detailed shop agreement with the works council, or if no works council is established, obtain the employee's consent to monitoring measures.

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Further reading:
European Court of Human Rights: Employers have limited rights to monitor employee communications at work

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