Restrictions in the Workplace
The employer is entitled to decide whether or not and to which extent the employees may use the company Internet, telephone or e-mail system for private matters, within or outside of the working hours. Without permission, the employee is generally not entitled to use the Internet for private matters. The Federal Labour Court held that even without an explicit prohibition, employees may not assume that the employer will tolerate private use. If the employee violates the prohibition of private use of work equipment, the employer is entitled to issue a warning and even to terminate the employment contract, depending on the circumstances.
In practice many employers permit the private use of Internet to a reasonable extent. However, even in case of permission, the use of the Internet for private matters should be restricted regarding the content and the time of use. We strongly recommend prohibiting the private use of the employee´s company e-mail address, as otherwise monitoring or accessing the employee´s company e-mail account may be very difficult, or may be a criminal offence, even where the employer has a legitimate interest in such access (e.g. when the employee is off sick, on vacation, has left the company, etc.).
Can the employer monitor, access, review the employee’s electronic communications?
The employer’s rights in this respect depend greatly on whether private use is allowed or not. If the employer has prohibited the private use, the content of an employee’s electronic communications can be subject to monitoring activities by the employer, unless such communications are obviously private. If the private use is allowed or tolerated, the employer may be qualified as a provider of telecommunication systems, such being subject to stricter laws, including criminal prosecution for accessing or ordering third parties to access employees’ communications beyond what is necessary for security reasons. As long as this question has not been answered by a German court, we recommend not monitoring the use of an employee’s electronic communications.
To be able to control the usage, the private use of Internet and e-mail should be made subject to the consent of the employee. In case the private use has been prohibited, the employer may spot check whether this prohibition is being observed. The employees will have to be made aware of these controls, and certain procedures and steps have to be complied with.
The key principle of the Federal Data Protection Act and the General Data Protection Regulation (GDPR), is that processing of personal data is prohibited unless expressly permitted by law, a works agreement or a collective bargaining agreement. Furthermore, it is still possible for an employee to give his/her consent to the specific data processing. Consent given under prior law will only remain valid insofar as such consent meets the requirements of the current regulations. In particular, the consent has to be separate from other terms, and the employer has to inform the employee about the purpose of the data processing, as well as the right to revoke the consent with future effect, and must be done in text form. In general, employers have to make sure that no 24/7 monitoring will occur. Monitoring of the employees requires an overall balance of interest between the privacy rights of the employee and the business needs of the employer.
Employee’s Use of Social Media to Disparage the Employer or Divulge Confidential Information
The employee is obligated not to violate the justified interests of the employer, even during their free time. This means that the employee is not entitled to disparage the employer towards any third person or on social media. Furthermore, the employee is obliged to settle any disputes with the employer internally, before leaking out internal information, especially to the media. In addition, under the law the employee is obliged to keep business and trade secrets confidential. Such confidentiality obligation has effect during the employment relation and also after its termination. If the employee violates this obligation, the employer is entitled to claim damages and, if appropriate, to terminate employment. Under certain circumstances violations may even be a criminal offence.