ORIGINAL FRENCH ARTICLE: Surveillance des salaries : big boss is watching you
by Christophe Baumgarten
Translated Tuesday 22 December 2009, by Derek Hansonand reviewed by
By Christophe Baumgarten, lawyer at the Bobigny bar. “If I drive poorly, snitch on me to my boss.”
“If I drive poorly, snitch on me to my boss”: This invitation, which you see painted on the backs of delivery vans, is a good indicator of the possible abuses of systems to control the activities of employees. This desire for control is now made easier by the new technologies, the innumerable ways that they can be recorded, and the ways data can be matched and compared: video spying, geolocation, computer tracing, bugging phone conversations...
But the recognized right of employers to check up on and supervise the activity of employees during their working hours runs up against respect for collective and individual freedoms, and notable the protection of private life and freedom of expression. In order to place limits on supervisory practices, case law has been built up around the provisions of Article L1121-1 of the labor laws: “No one may place restrictions on collective and individual freedoms or on personal rights which are not justified by the nature of the job to be done nor proportional to the goal sought.” Thus all supervisory systems must be based on the legitimate interests of the company (guaranteeing the safety of people and property, evaluating a job candidate or an employee, managing working hours and time on the job, verifying and controlling telephone expenses, optimizing the management of a company’s human and technical resources...), while, however, remaining adequate, relevant and non-excessive with regard to the goals to be achieved.
Before being adopted and put in place, these systems must be discussed with the works council and the workers concerned must be informed.
The Appeals Court has pointed out that the law only applies to systems of supervision (thus, keeping an eye on an employee’s use of company phones via the detailed phone bill furnished by the service provider is not a “system” of surveillance and, as a consequence, these rules do not apply) and the system must be aimed at supervising employees (which is not the case of a closed circuit camera set up in a room to which no employee has access).
Finally, a system that includes the automatic processing of data linked to a person’s name must be registered beforehand with the French National Commission on Information Technology and Freedom (CNIL). If this is not done, the data that is collected cannot be used as evidence against an employee and the erasure of the data may be ordered. An employer is also liable to penal sanctions in case of violation of the intimacy of private life (for example, in the case of phone bugging of which the employee is unaware) or the violation of private mail (for example, opening letters marked “personal”).
Notwithstanding this, legitimate necessities of safety, management and maintenance have given way to a permanent supervision of the minutiae of employee activity, with largely under-estimated consequences for working conditions generally and for the generation of stress in particular.