Workplace Technology: New rules for a new era - A view from Germany - Annual Review 2015

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

This article is an extract from our Annual Review 2015.

Workplace technology is blurring the boundaries between personal and professional lives. Our employment partners shed light on who's watching whom...

Lawmakers are starting to realise that the questions posed by the digitalisation of the workplace need to be answered

To say that Germany has been slow to tackle the challenges posed by new communications technologies in the workplace is an understatement. Chancellor Angela Merkel's faux pas last year - she referred to the internet as "virgin territory" - showed how far Germany's politicians and lawmakers have to go to catch up with technology.

In the absence of a steer from Brussels, where proposals to reform data-protection laws are currently on the table, Germany's employee data-protection legislation is still pending. Specific legislation governing employees' behaviour on digital platforms is also non-existent. Whether an employee is in breach of the law depends entirely on the courts' interpretation of general legal principles.

Common sense

Fortunately, common sense on all sides (from employers, employees and the unions) is proving to be a sufficient safeguard - particularly in light of high-profile scandals such as those involving Deutsche Bank, which illegally monitored employee emails, and supermarket Lidl, which installed video cameras throughout its stores and in staff changing rooms because of concerns about theft by employees.

We have been helping clients in Germany to navigate problems that the law hasn't even anticipated yet. When eBay wanted to record its customer-support staff's telephone calls and computer journeys in order to provide them with further training, the company works council raised concerns about data-protection rights. It took us 14 months to reach a position where both parties were happy for the monitoring technology to be implemented.

Employees' data-protection rights are also cited as a concern when companies want to make use of cloud computing services. Germans are reluctant to see their personal data transferred to clouds in countries that are not regarded as data-protection safe havens, and works councils are increasingly insisting that employers seek their consent before storing employee data in the cloud.

Works councils are also concerned about employees having to use an electronic keycard to access different parts of their workplaces. The technology alerts employers to unusual employee movements, but whether they can use this information to confront staff is unclear. Either way, it is considered by some to be a step too far when it comes to monitoring.

Change is afoot

The need for legal clarity on these and other digital employment dilemmas is clear, and there has already been some progress in the form of a coalition agreement between Germany's two governing parties that commits the coalition to reviewing employment law in light of workplace digitalisation.

We can expect to see a number of developments. The Federal Data Protection Act is likely to be amended to offer clearer employee data-protection rules and will come hot on the heels of the new EU Data Protection Directive.

The changes will give employers guidance on monitoring employees and vetting candidates, including via social media.

We can also expect to see clarity on the use of mobile devices out of working hours, employees' misuse of social media and the protection of trade secrets.

Germany's lawmakers have been slow to realise the impact of communications technology on the workplace, but it is finally dawning on them that they need to give employers answers to some difficult questions if they are to help German companies remain globally competitive.

Click here to view an electronic copy of our Annual Review 2015.