Tempo di lettura stimato (in minuti)
After revelations in the press, the Ikea company admitted to having had its employees spied on in France. Does an employer have the right to monitor his employees? What practices are legal?
Filming employees
In public places or places open to the public, such as a supermarket or a bank, the employer can install a video surveillance system, provided that he has obtained authorization from the prefecture. In private places, the employer can also use video surveillance for security reasons. In this case, the employer must first consult the works council, make a declaration to the CNIL if the recorded images are kept, and also inform the employees. If these rules are respected, the employer will be able to use these recordings during disciplinary proceedings or litigation.
However, this system must never lead to generalized and permanent surveillance of personnel.
Telephone calls
The employer cannot prohibit the use of the telephone for personal purposes, but this must remain reasonable. He can therefore monitor employees in order to ensure that this private use is not abusive, and check, for example, the duration of calls. On the other hand, listening to telephone conversations is prohibited.
The employer is authorized to carry out telephone tapping in certain professions when this is justified by the legitimate interests of the company: this is the case, for example, for hotlines or telephone assistance platforms where the recording is carried out in order to improve the quality of the relationship with clients, or in trading rooms where proof of orders issued or received by the trader must be kept. In these cases of exceptional listening, the employee must have been informed beforehand.
Internet use
As with the telephone, the employee must be able to have reasonable personal use of the Internet. To protect the computer system, the employer has, for example, the right to prohibit access to certain unauthorized sites (commercial sites, pornographic sites, etc.) via filtering devices. Also for security reasons, he can also prohibit access to software download sites, forums, personal messaging, etc. In this case, employees must have been informed beforehand. In addition, Internet connections established during working time are presumed to be professional, the employer has the right to be aware of them. He can check the nature of the sites visited and check whether the employee spends a lot of time on the Internet instead of working.
Computer data
The employee has the right to respect for the privacy of his private life and to the secrecy of his correspondence. The employer cannot, therefore, consult the messages sent or received by the employee which are indicated as being personal.
However, if the employer suspects a risk for the company (for example, misappropriation of customers, unfair competition, etc.), he has the possibility of checking the data on the computer. For this, he must ask the judge of the tribunal de grande instance for the intervention of a bailiff who will intervene on the employee’s workstation, and in his presence. He will be able to access the employee’s personal files and e-mails. The employer can use the computer documents to which he has had access, in accordance with the rules in force, to prove an employee’s fault in the context of a procedure or litigation. On the other hand, he cannot use them to punish him if they relate to his private life.
Recording of employees
The employer has the option of keeping files or databases on its employees, in compliance with the obligations of the CNIL (National Commission for Computing and Liberties). What can be problematic is the nature of the information collected. Purely objective information (age, seniority, sex, etc.) is authorized, even if it is personal. On the other hand, information related to religious, sexual, and trade union practices, as well as information on the employee’s state of health, is prohibited.
Concerning the data on the professional evaluation, they are possible if they remain objective and formulated in a respectful way.
NB
The Court of Cassation has ruled that a computer file entitled “My documents”, in an office computer, is not a personal file. Its opening by the employer does not, therefore, constitute an invasion of privacy.
Thus, the employee who intends to reserve a space dedicated to personal documents, saved on his professional computer, must display the personal character by an appropriate mention.
Employees must therefore be extremely careful and diligent if they want to put their photos (from vacation or “other”…) on their office computer, identifying very clearly that they are personal files.
Société d’Avocats DAMY, Nice, Supervision of employees by the employer, Update 2022
