Understand the conditions under which employee surveillance on personal devices is allowed under GDPR. Learn about consent, purpose limitation, and data protection requirements.
Table of Contents
Question
Gentle Hedgehog Inc. is a privately owned website design agency incorporated in Italy. The company has numerous remote workers in different EU countries. Recently, the management of Gentle Hedgehog noticed a decrease in productivity of their sales team, especially among remote workers. As a result, the company plans to implement a robust but privacy-friendly remote surveillance system to prevent absenteeism, reward top performers, and ensure the best quality of customer service when sales people are interacting with customers.
Gentle Hedgehog eventually hires Sauron Eye Inc., a Chinese vendor of employee surveillance software whose European headquarters is in Germany. Sauron Eye s software provides powerful remote-monitoring capabilities, including 24/7 access to computer cameras and microphones, screen captures, emails, website history, and keystrokes. Any device can be remotely monitored from a central server that is securely installed at Gentle Hedgehog headquarters. The monitoring is invisible by default; however, a so-called Transparent Mode, which regularly and conspicuously notifies all users about the monitoring and its precise scope, also exists. Additionally, the monitored employees are required to use a built-in verification technology involving facial recognition each time they log in.
All monitoring data, including the facial recognition data, is securely stored in Microsoft Azure cloud servers operated by Sauron Eye, which are physically located in France.
Under what condition could the surveillance system be used on the personal devices of employees?
A. Only if the monitoring system is manufactured by a European vendor storing the monitoring data within the EU.
B. Only if the employees give valid consent and the monitoring is narrowly limited to their professional tasks.
C. Only if the cloud that stores the monitoring data is certified by the EDPB as GDPR compliant.
D. Only if the employer offers an adequate compensation for using the employee’s devices.
Answer
The correct answer is B. The surveillance system could only be used on the personal devices of employees if the employees give valid consent and the monitoring is narrowly limited to their professional tasks.
Explanation
Under the GDPR, employee monitoring on personal devices is generally prohibited unless certain strict conditions are met:
- The employees must freely give specific, informed and unambiguous consent. Consent cannot be a condition of employment.
- The monitoring must be necessary for the legitimate interests of the employer and proportionate to the business needs. It should be limited in scope to what is needed for the specified professional purposes like preventing absenteeism and ensuring customer service quality.
- Less intrusive methods should be considered first before resorting to pervasive surveillance.
- Employees must be clearly informed in advance of the existence of the monitoring, its purposes, and the precise scope. The “Transparent Mode” described would help meet this transparency requirement.
The location of the vendor or servers (choices A and C) is not the key determining factor. And offering compensation (choice D) does not alone provide a legal basis if the other GDPR requirements around consent, necessity, proportionality and transparency are not met.
So in summary, while employee monitoring on personal devices is not categorically prohibited, it is only allowed under GDPR if there is valid employee consent and the surveillance is strictly necessary for and proportionate to the legitimate business purposes. The scope must be clearly communicated and narrowly tailored to the employees’ professional tasks.
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