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Video surveillance in the workplace - may the employer monitor employees?
The core of the contractual relationship between employer and employee is: Becomes a Employed in a company, they are obliged to perform the tasks assigned to them as well as possible. In return for her efforts, she receives a correspondingly agreed remuneration, since she cannot pursue her leisure activities or attend government agencies during this time.
But especially when there are not so many or less exciting tasks to be done at the moment, one or the other is there tempts to secretly devote oneself to other things that have nothing to do with work.
In a nutshell: video surveillance in the workplace
The legislator only allows video surveillance in the workplace if strict requirements are adhered to. Read here which circumstances play a role.
In principle, employee monitoring via video may also be carried out by third-party providers commissioned by the employer.
The right to confidentiality of the word is very important in Germany. Failure to comply could result in a prison sentence of at least three years. Here you get more information.
Employers do not like this behavior on the part of their employees, because they want it rarely pay for doing nothing. Your solution: You set up a camera at the workplace. But is that even permissible? And what does data protection say about this? We explain that and more in this article.
This guide explains the circumstances under which camera surveillance is permitted in the workplace, what it can look like in concrete terms and what must be taken into account in video surveillance in the company. Workers learn how to defend themselves against surveillance.
What motivates employers to carry out camera surveillance in the workplace
At most workplaces, there will probably not be a camera in the immediate vicinity of the place of work that records the actions of the employee. But Under certain circumstances, superiors always resort to having offices etc. monitored.
This can not only be decisive increasing theft of company property be. Also the assumption that some employees it doesn't look very tight with the break regulation and like to start the daily rest break a little earlier and extend it excessively, this can be the reason for employee monitoring with the camera.
Under what circumstances is video surveillance of one's own employees allowed?
We meet in our everyday life Cameras almost everywhere we go in public: be it in the underpasses and at the public transport stops, in front of shops and in the entrance areas of office buildings. We are almost nowhere safe from them.
Proponents argue that surveillance would provide greater security in the event of any criminal offenses, perpetrators would be identified more quickly and thus also caught. Critics complain permanent surveillance that leaves little room for privacy. In addition, the entire society will be taken hostage for the failures a few less.
The video surveillance of employees in publicly accessible rooms
Not every employee is employed in a private office, but may work under certain circumstances as a clothing seller in a retail store accessible to customers, guides visitors through museums or works at the counter at a bank. In addition to protecting employees from theft and increasing the security of employees, there is sometimes video surveillance in the store.
When a Monitoring in the workplace allowed is in public places, regulates the Federal Data Protection Act. It executes:
The observation of publicly accessible rooms with optoelectronic devices (video surveillance) is only permitted if they
- for the fulfillment of tasks [...],
- to exercise house rights or
- to safeguard legitimate interests for specifically defined purposes
- is necessary and there are no indications that the interests of the data subjects worthy of protection prevail. "(§ 6b Federal Data Protection Act - BDSG -" Observation of publicly accessible rooms with optical-electronic facilities ")
The text of the law also states that video surveillance of workers and other visitors in this case clearly communicated, usually by means of appropriate signs. These must also contain a note who is responsible for this.
Attention: The legislator prescribes that the information collected by public video surveillance in the company must be deleted as soon as possible if the intended purpose can no longer be achieved.
This also applies to circumstances in which the legitimate interests of those filmed are to be considered more important.
Even though the surveillance of rooms in which the cash counters of a bank are located, for example, is allowed - it is expressly forbidden to use the knowledge gained to spy on employees.
The Personal rights is rated very highly in Germany. The It has a massive impact on video surveillance in the workplace, which is why a balancing of interests is imperative. Only if this works out in favor of the employer may surveillance be carried out at the workplace with a camera.
If your boss records what is happening in the office or at your workplace permanently without having a reason for this control, this is not compatible with German law. The Covert video surveillance in the workplace is usually not considered necessary in this case and thus also as not legally classified.
Surveillance camera in the workplace - which places or rooms are taboo?
In some cases, it has already been stated that cameras can be installed everywhere in order to monitor the behavior of employees and customers. But which ones are specific There are specifications for the attachment and the effective range of video surveillance systems?
As public and can therefore be monitored in principle The following rooms or areas apply:
- Customer parking
- Parking garages
- Gas stations
- Sales areas of supermarkets, clothing stores, etc.
- publicly accessible entrances to company properties
On the other hand, filming is not permitted in places that are considered part of the very personal sphere of life. These are among others:
- Sanitary rooms
- Locker rooms
- Break rooms
The legislator protects these locations from video surveillance in the workplace through labor law and data protection, as Employees here mostly behave privately. They are therefore saved from being viewed by video camera.
When can covert surveillance with cameras be carried out?
Clear stricter than public video surveillance in the workplace covert filming is handled by employees.
Before this measure can be used, however, are to contrast two things: the general personal rights of the person concerned and the interests of the employerif an employee is suspected, for example, of theft or working time fraud.
In this context also plays a role whether the camera surveillance of employees is the only possible meansto track down a criminal offense or the like. Only if this question can be answered with "yes" is the procedure relatively.
If necessary, the secretly obtained records may therefore also be used as evidence in any court proceedings.
Non-working camera in the workplace - are camera replicas allowed?
Employers are not always interested in actually monitoring employees via video surveillance and making records. For some, the mere deterrent effect is enoughtriggered by clearly visible cameras.
Devices that look deceptively real as well as functional devices that have never been in operation can count as dummies.
Which regulations apply here? An encroachment on personal rights cannot be assumed, can it?
This results from the fact that employees change their behavior through the mere presence of such unknowing dummies and are thus restricted. From this could possibly even result in a claim for damagesif they are not correctly informed.
How long can the results of video surveillance be kept in the workplace?
Thereupon this BDSG a first hint. In Section 6b (5) it is stated that if the purpose for which the video surveillance was introduced is to destroy the data obtained are. This is the case, for example, when the danger is averted or there is no longer any need for evidence of a prosecution of offensesbecause, for example, a case was discontinued The deletion of the recordings must also be carried out in the event that the interests of a data subject that are worth protecting are more important.
In view of the not exactly clear statement, courts have already dealt with this topic and have come to the conclusion:
Is video surveillance allowed in the workplace, the data must be deleted after ten days at the latest - at least that's how the Higher Administrative Court (OVG) Lüneburg sees it (Az. 11 LC 114/13).
In its reasoning for the judgment it states that there are very practical reasons for this: namely longer non-working hours. During this time, the data protection officer would have to be ordered back from vacation, for example, in order to view the relevant recordings, evaluate them and delete them if they are not relevant. According to the court ruling, this cannot be required of an employer.
Many proponents of a strict data protection policy - such as the representatives of the federal states - do not agree with this view. In your opinion, the maximum storage period should be a maximum of 72 hours, i.e. three full days. Longer deadlines would put workers at a disadvantage.
The works council and the video surveillance in the office - should they be involved?
For the Employee rights in the company the works council is committed. He makes sure that their interests and wishes are heard and stands up for them accordingly.
The rights and duties of a works council are in Works Constitution Act (BetrVG) held. The very extensive body of law also deals with whether and how the works council should be involved in a planned video surveillance at the workplace.
One of the legally evidenced The core tasks of the works council are participation in certain corporate decision-making processes. This also applies to employee monitoring.
If there is no statutory or collective bargaining agreement, the works council has a say in the following matters: [...] introduction and use of technical facilities that are designed to monitor the behavior or performance of employees. "(Section 87 (1) No. 6 BetrVG)
So if an employer tries to clear up thefts that are common in the company by means of video surveillance at the workplace, he cannot avoid to inaugurate the works council beforehand. This can then, among other things, influence how the video camera is used.
The company agreement on video surveillance
Before video surveillance is started at the workplace, one is required company agreement. It is called Contract between the works council and the employer closed and is subordinate to a collective agreement.
A company agreement for video surveillance in the workplace usually specifies which type of camera is used, for what purpose the assembly is carried out, who is affected by the camera surveillance, how long the recordings are stored Etc.
- affected departments
- Description of the camera system used
- Transmission of the data obtained
- Retention and deletion of records
- Rights and obligations of the third party commissioned
- Workers' rights
- Works council rights
- Access regulations
- Ending video surveillance in the workplace
Can external cameras be used to monitor employees?
Not every company decides to assemble the cameras themselves and evaluate the recorded data themselves. After all, this requires the workforce of a specially trained person. Therefore, the smaller the company, the more likely it is that this task is passed on to an external service provider for a corresponding fee.
However, since it is about highly personal data of employees that is recorded during video surveillance at the workplace is appropriate To exercise care. The BDSG stipulates what employers specifically have to take into account when commissioning third parties.
If a company decides to entrust an external company with the collection, processing or use of personal data, it ensures that data protection and the associated provisions are complied with.
This includes, among others Duties: On the The search for a suitable company must be proceeded with great care.
In addition, the written form is essential when using an external service provider for video surveillance at the workplace.
The Federal Data Protection Act prescribes which parts of the contract are essential and therefore indispensable:
- Which object has the contract and for how long will it be completed?
- What kind of Data are used for what purpose and in which scope collected, processed or used?
- who is affected by the surveillance?
- Which technical and organizational measures are taken to ensure data protection?
- How and when will Data corrected, deleted and blocked?
- Under what circumstances may Subcontracts concluded become?
- Which Control rights does the client have and what does the commissioned company have to tolerate or where and how does it have to cooperate?
- Which Violations of the data protection regulations or must the contractor notify the client of the components of the contract?
- How is it about that Authority of the client to issue instructions ordered from the commissioned company for video surveillance at the workplace?
- What happens to the Data after the contract has expired is? (Return of the storage media and deletion of the stored data)
However, if all these regulations are met, that will not be the end of the story.
Is video surveillance in the workplace a criminal offense?
Is an employer very curious and monitors its employees without their consent or to observe the legal requirements, he must expect serious consequences.
Great importance is attached to data protection in Germany and the employee's general right to privacy is highly valued. As a result, many courts severely punish companies that use illegal video surveillance in the workplace.
In the past, one case (Az. 2 AZR 797/11), one Termination without notice and with due notice. These resulted from the findings of a secretly carried out employee monitoring via video showing regular theft of company property. The dismissed employee took action against this dismissal by filing an action for protection against dismissal and was right. The judges stated:
Information illegally obtained by video surveillance at the workplace may be subject to a utilization requirement - namely, when actually milder means could have been used to uncover the misconduct. The principle of proportionality was not taken into account in this case.
If you listen to unauthorized confidential - i.e. non-public - conversations between employees, record them or pass the data on to third parties, commit one Offense, with:
- one Up to three years' imprisonment or
- one Fine is punished.
It is even worse for so-called Officials, i.e. civil servants or judges for example. One threatens them Imprisonment of up to five yearswhen the confidentiality of the word is violated.
In addition, affected workers can also assert claims for damages for illegal video surveillance in the workplace.
The Hessian State Labor Court (LAG) has already dealt with such a situation.
The following case was negotiated: The employer constantly monitored the behavior of an employee with a camera mounted on the office door, without their consent and for several months.
The court considered it proven that that general personal rights and the right to informational self-determination were severely affected by this measure. The employee was therefore entitled to 7,000 euros compensation (Hessisches LAG, Az. 7 Sa 1586/09).
This is how you can defend yourself against violations by your employer
If you do not want to accept or check the video surveillance at your workplace, what rights you have to take action against filming yourself and saving your personal data, you have various options.
- First of all, you can always get one, of course Consult a lawyer to clarify your questions. In particular, an experienced legal representative is at your side competently and represents you when the going gets tough, even in labor court proceedings. Especially Specialist lawyers are skilled in certain areas, you can only bear this title with a certain amount of experience.
- But not only external contacts can help you in a case of undesired video surveillance at the workplace. Also the You can address the works council with questions and problems relating to employee monitoring. Finally, he should be informed about possible measures in this regard.
- Are you Member of a trade union? Then you can also ask them for support and advice. After all, in this case you will benefit from one free legal protection insurance, who also supports you when legal proceedings cannot be averted.
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