As an attorney who specializes in privacy law and employment law, Melanie Hermes is very knowledgeable about privacy in the workplace. What can an employee do if the employer objects to the recording of an interview, and what research-based information may an employer use during a job application process? Three questions for Melanie Hermes.
An employee may record conversations between him or her and his employer (or read: supervisor). Sometimes this may be necessary for the employee, because emotions are involved in more difficult conversations and it is nice to be able to quietly listen to everything again later. Or it serves as evidence in later dismissal proceedings. If an employer does not appreciate having a conversation recorded, an employee could even do so without permission. Granted, that's not very classy and will put the employment relationship on edge. But as long as the employee himself participates in the conversation, this is not prohibited. However, it is prohibited as soon as it happens outside the presence of the employee, such as when the employee himself briefly visits the restroom and lets the recording continue in the meantime. Then it is in fact eavesdropping and this is punishable.
An employee who always records all conversations with his or her employer can thereby also cause labor relations to deteriorate. An employee who did this in the past, because he had no trust in his employer, could be fired for disturbed labor relations.
The employer and the employee are in an unequal relationship. The employer (be it an organization or a single person) is usually the one who pulls the strings and exerts a certain amount of influence over the staff. In this, the employee has significantly less say and in a sense follows what the employer tells him or her to do. Because there is an inequality between these parties, the processing done by the employer is extra sensitive. The employer will have to examine extra critically whether a processing operation can be brought under one of the bases before it can be given the green light.
Whereas in a less unequal relationship the basis 'explicit consent' can be used, in an employer-employee relationship this is almost impossible. After all, it is hardly possible to test whether the employee truly and intrinsically motivated his or her consent to data processing to the employer, or whether the consent was prompted by that unequal relationship. Will I lose my job if I say no, will I lose my standing for promotion if I refuse? These questions will easily arise in an employee and thus provide an incentive to give consent anyway, even if the employee has doubts. As a result, personal data not directly related to the employment contract should not be recorded in the personnel file.
Of course, this does not mean that really only the data from the employment contract can be processed by the employer. If the employer wishes to register the employee with a pension company or insurer, because this is part of the terms of employment, the employer will sometimes need to have the personal details of family members of the employee. That data does not literally come from the employment contract, but it can be processed on good grounds.
An employer may check what kind of meat he has in the tub and may therefore screen a job applicant. This screening can take place in a variety of ways. The employer can request references from a previous employer, may have a medical examination if this is necessary for the position (think of the pilot who must have good eyesight), but he can also search the Internet himself for the applicant. If the latter is limited to public information, such as found on LinkedIn, it will still be classifiable under screening.
In order to be allowed to screen an applicant, and thus to look up on LinkedIn, there are a number of ground rules. First of all, it must be clear to the applicant how he or she will be screened. For example, the applicant may decide to quickly clean up a LinkedIn or Facebook page before entering the application process. Furthermore, screening should not, as a basic rule, involve special personal data, such as medical information or information surrounding religion. If this is nevertheless necessary, think again of the pilot who must have good eyesight, then it is necessary to involve authorized organizations or individuals in the screening process. The applicant should also be informed of the results of the screening so that it can be acted upon. After all, it would be very annoying when less pleasant search results of someone with a similar name come up, upon which you as an applicant are dismissed. Then it is very nice to be allowed to clarify that you are not that person. In short, a potential employer may in itself consider the results obtained when deciding whether or not to hire an applicant, but only if the screening was done according to the rules of the game.
On May 26, Melanie Hermes is hosting the online workshop "Privacy in the Workplace.
Employers like to be aware of the ups and downs of their employees. But how far may they go in this regard? What are the options and obligations when it comes to camera surveillance, illness registration and job applications?
The online workshop 'Privacy in the workplace' explains what all players in the workplace are bound by when it comes to employee privacy. Using case histories, the topic is made clear and you can actually work with it.
