Berlin Algorithms help companies to find suitable applicants. Scanners make it easier to sort the flood of parcels, but they can also be misused to monitor the performance of logistics workers. And in social networks, the boss may also see when his employee drinks too much.
Digital progress offers companies and employees new opportunities, but also harbors risks when dealing with sensitive data.
“Whether in the home office or in the company – employers can log every keystroke and every website visited, every activity in social networks,” said Anja Piel, board member of the German Trade Union Confederation (DGB), on Wednesday in Berlin. Some companies have already introduced a point system for social behavior in the sense of social scoring – “an Orwellian nightmare,” said Piel.
It is therefore good that the SPD, Greens and FDP agreed in the coalition agreement to create regulations for employee data protection. It is about “achieving legal clarity for employers and employees and effectively protecting personal rights,” according to the project planning of the traffic light parties.
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The federal government could now get help with the formulation of a law from the DGB, which has formulated a draft together with the Frankfurt labor lawyer and data protection expert Peter Wedde.
The aim of the law is to strengthen “the interests, fundamental rights and freedoms of employees and in particular their right to informational self-determination”. This is necessary because there is a “structural imbalance” between employees and employers.
Without a clear legal basis, employees who do not agree to the use of their data or who complain about misuse may risk being dismissed and thus their economic livelihood. According to the DGB, the existing paragraph 26 on employee data protection in the Federal Data Protection Act alone is not sufficient.
More about data protection
The independent Advisory Board on Employee Data Protection takes a similar view. The body of scientists, practitioners and lawyers was set up by the Federal Ministry of Labor during the last legislative period and presented its recommendations at the end of January.
The experts are in favor of “a nationwide uniform, legally binding and reliable set of rules” so that employers and employees can assess with legal certainty which data processing is permissible and which is not.
In his activity report for 2020, the Federal Data Protection Commissioner Ulrich Kelber pointed out, for example, that not all of the messenger and video conference systems used en masse in the Corona period were harmless in terms of data protection.
>> Read here: Why the Berlin data protection officer Maja Smoltczyk has reservations about common video conferencing systems
According to the DGB draft, data may only be collected and stored if this is necessary for the job and the employees voluntarily agree. Behavior and performance controls that are necessary for the work must be transparent and comprehensible for the employees and must not be permanent. The draft also provides clear rules, for example for job interviews, test procedures or medical aptitude tests.
Many questions have so far only been clarified by case law, said labor lawyer Wedde, who was instrumental in formulating the draft, to the Handelsblatt. What can an employer do secretly, can he read data from the company car, what can he ask applicants? All of this has kept courts busy enough. “But case law is changeable,” says Wedde, “that’s why I think legal clarification is necessary.”
Black and Yellow’s bill failed in Parliament
It is not the first attempt for a law on employee data protection. Even the red-green federal government under SPD Chancellor Gerhard Schröder saw a need for action, but failed to pass any legislation. In 2010, the black and yellow federal government then passed a draft that failed in the parliamentary process. Employers and trade unions had expressed strong criticism of the planned regulations. The black-red coalition then formulated only one test order in the past legislative period.
Federal Labor Minister Hubertus Heil (SPD) is now determined to bring the project into the law gazette. “The new coalition wants to create regulations for employee data protection in this legislature,” he said at the end of January when the independent advisory board he had set up published its recommendations.
Lawyer Wedde is trying to allay concerns that a law could make the use of assistance systems or algorithms more difficult in the future or even destroy new digital business models. It is of course undisputed that employers need employee data. “But they should only get the ones they really need, not the ones they want.”
More on this: How we protect our data effectively – guest commentary by Bettina Uhlich and Heinz-Günter Lux.