Employee Surveillance - What is allowed and to what extent?

Eliane Spirig
Eliane Spirig

The limits of permissible surveillance of employees are very narrow. On the one hand, those persons affected must be aware of the surveillance and on the other hand, the employer must not evaluate the information gained arbitrarily. In general, very strict principles are applied.

In this article we would like to show different types of monitoring and their legal limits.

Monitoring email traffic and Internet usage

If employees use the Internet for private purposes during working hours, this can cause problems for the employer. On the one hand, its costs increase if private things are done during working hours and on the other hand, there is the possibility that employees call up illegal or inappropriate Internet sites. In such cases, reputational damage is inevitable.
Every use of Internet and mail programs leaves behind so-called log files, a kind of recording  on the server. As a rule, only the so-called marginal data is stored. This data records for example who called at which website at which time, or who sent an e-mail to whom.
An evaluation of this marginal data is only permissible if there is a suspicion of abuse. The evaluation complies with the principle of proportionality and the employees need to be explicitly informed about the evaluation (duty to provide information).
In any case, it is recommended that an employer sets up regulations governing the private and business use of the Internet and e-mail during working hours. In addition, technical measures with which certain websites are blocked may also be a solution.

video surveillance

Nowadays it is almost common to install video surveillance systems in retail shops, restaurants or even in the entrance area of a company. Basically, this is unproblematic, as the records serve as protection against theft or damage to the furniture. Difficulties arise as soon as not only the customers but also the employees are filmed.

What has to be considered with video surveillance?

Article 13 of the Swiss Federal Act on Data Protection (FADP) states that video recording is only permitted if the supervised employees have given their consent or if it is justified by a private or public interest.
Such an interest may exist, for example, if video surveillance is used to protect security or if there is a concrete suspicion of abuse.
Nevertheless, video surveillance should only be used if the objective pursued cannot be achieved with another, milder measure.
Please note the following:

  • Employees should be informed about the use of video surveillance systems

  • The storage of video files must be limited in time (deletion within 24 to 72 hours).

  • If public places are monitored with a video system, a permit must be obtained from the responsible municipality beforehand.

  • Video surveillance systems must be clearly visable.

  • If video surveillance cannot be dispensed with, it is advisable to use data protection-friendly technologies such as "Privacy Filters" (to make the filmed faces unrecognisable).

phone tapping

Although the digital world communicates more and more via the Internet, the telephone is still an important means of communication. The employer must also take several points into account when monitoring telephone calls:
On the one hand, usage regulations must clearly state whether private telephone calls are allowed during working hours. On the other hand, the employer must explicitly inform his employees about possible monitoring and telephone recording.
In addition, monitoring of call content is only permitted to a very limited extent. Under no circumstances may private conversations be recorded and/or intercepted by the employer. Individual interception or recording of business conversations, for example in call centres, is permitted. Nevertheless, consent is required from both parties, i.e. also from the customer.

closing remarks

Overall, it should be noted that monitoring employees at the workplace is only permitted to a very limited extent. The employees must always be informed. Depending on the situation or type of monitoring, additional duties may be added.
Since the principle of proportionality and the circumstances of the individual case play a major role, it is always advisable to consult a specialist and have the intended monitoring measures assessed by an expert.

 
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