Data and Works Council

1
Data and Works Council

• Codetermination Rights of the Works Council
• Germany

Dr. Philipp Süss 27 February 2008
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Codetermination Rights of the Works Council

• Codetermination Rights The works council has a
  right of codetermination regarding the
  introduction and use of technical equipment,
  which is specifically designed to monitor the
  conduct or performance of employees (Section 87
  German Works Council Act).
• Prior Consultation Employer must consult the
  works council before introduction and use of such
  technical equipment, e.g. a computer system,
  which can be used to monitor the conduct of
  employees and collect corresponding data.
• Relatively Low Threshold Section 87 of the Works
  Council Act has a relatively low threshold. E.g.,
  a right of codetermination of the works council
  can already exist if the employer introduces or
  uses software by which e-mails of employees can
  be accessed and read.

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Codetermination Rights and Software

• In General All software which determines and
  records data relating to the behaviour or
  performance of users.
• In Particular Operating Systems, if the
  beginning and end of the employees use of the
  system is determined and recorded, so that by
  analysis of this data conclusions can be made
  with regard to the behaviour or performance of
  the respective system user.
• In Particular Human Resource Software.
• Updates If a codetermination right exists with
  regard to introduction and use of a certain
  software, this also applies with regard to the
  implementation of an upgrade or update to that
  software.

4
The Works Agreement

• Consent Employer may not implement the planned
  measures without consent of the works council
  (Section 87 German Works Council Act).
• Works Agreements If the works council consents,
  a works agreement is concluded. In Germany, works
  agreements often exist, which grant the works
  council more comprehensive participation rights
  with regard to data and IT-systems than provided
  for under statutory law.
• Conciliation If an agreement cannot be reached,
  either party may appeal to the conciliation
  board. The proceedings before the conciliation
  board entail significant costs to be borne by the
  employer, in particular costs of the employers
  legal advisor, costs of the works councils legal
  advisor and, if applicable, fees of authorised
  experts.
• Preliminary Injunction If consent of the works
  council has not been properly obtained, the works
  council can generally apply for a preliminary
  injunction to stop the use of the IT-system /
  software and the collection of data.

5
Whistleblowing Issues

• France

Frédéric Saffroy 27 February 2008
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Whistleblowing Issues (1)

• Origin
• Collecting alerts from any employee as to
  fraudulent behaviours within the company
  (Sarbanes Oxley Act of 31 July 2002, USA)
• Obligation to provide a Code of Ethics within the
  company, including a whistleblowing scheme
  (protection of employees ensured within the US
  legislation)
• Implementation in France
• Difficulties of accepting such methods, generally
  considered as denunciation practices (reluctance
  related to history of denunciation in France
  during World War II)
• Strict legal provisions necessary to avoid any
  abusive use of these methods (Labour law, Data
  protection law)
• Significant decision of first instance tribunal
  of Nanterre, 19 October 2007

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Whistleblowing Issues (2)

• Conditions of validity of whistleblowing
• under labour law
• prior submission (consultation and information)
  to Works Council and to Health Safety Committee
  (CHSCT)
• strict definition of possible alerts (domain,
  persons targeted, methods of alerting)
• as opposed to the Règlement Intérieur,
  whistleblowing must not create any binding
  obligation upon employees (no disciplinary
  consequences) it must remain totally optional
  and confidential (but may not be anonymous)
• prior individual information of all employees is
  required
• Employees protection (articles L. 122-45 et seq.
  of Labour Code) in case of sexual or moral
  harassment and discrimination
• New article L. 1161-1 for protection of employees
  when reporting corruption behaviours

8
Employees under watch and ward

• Camera telephone surveillance, e-mail archiving
• Belgium

Liesbeth Weynants NautaDutilh 27 February 2008
9
Employees surveillance

• Introduction
• Video cameras (Video Surveillance Act of 21 March
  2007 CBA 68)
• Act Control and surveillance of places (broader
  than work place) to prevent or solve crimes,
  prevent nuisances and maintain order
• CBA to protect company property, controlling
  performance, health safety at work
• Warning only by pictogram heavily criticised
• Telephone recording (private and business)
• Without the prior unambiguous consent of all
  participants to the call a criminal offence
  (Article 314bis Criminal Code introduced by the
  30 June 1994 Act).
• Calls in the course of business qualify as
  "private conversations".
• Questionable whether a mention in (i) the general
  conditions and (ii) employment agreements is
  sufficient to prove unambiguous consent.  

10
Employees surveillance

• E-mail and internet monitoring / archiving
• Monitoring / Archiving all e-mails is excessive
  (distinguish private professional)
• Art 124, 125 en 128 Act of 13 June 2005 on
  electronic communication
• Seeking access to information of which one is not
  the addressee is prohibited
• Identifying persons or data relating to
  communications is prohibited (How many e-mails
  are sent by an employee? How much time did he
  spent on the internet? etc)
• Allowed if consent or in a legal business
  exchange to prove commercial transactions/communic
  ations (prior unambiguous information)
• CBA nr. 81 of 26 April 2002
• protect employees' privacy vs control electronic
  on-line communication by employer (only)
• finality (indicate precise purpose),
  proportionality (relevance of the data and avoid
  excessive data), transparency (info to works
  council etc)

11
Employees surveillance

• Sanctions
• Data can not be used in court except in two
  criminal cases (theft) not in employment cases
• Cases before court (civil or criminal) and/or
  complaint with the Privacy Commission
• Preventive steps
• Information to employees (in policies, employment
  agreements, information to the works council
  etc.)
• Information to third parties (in general
  conditions, standard e-mail notices etc.)
• Notification to the Privacy Commission
• Not necessary for employees salary
  administration
• Necessary if transfer of data abroad / if
  evaluations are made

12
Employees Data in Spain

• How to Avoid the Risks of Processing
• Spain

Fernando Gonzalez 27 February 2008
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Is it necessary to obtain previous consent?

• An exception to the general rule

14
Collecting Data

• Selection Process
• During the Employment Contract
• Risk prevention health data

15
Security Measures and Responsible People

• How to comply
• Who is responsible?
• What are the employees obligations?