Personnel Monitoring

Employers have several options to automatically collect all sorts of information about their employees, e.g. by means of camera surveillance, switchboards, access gates, and computer systems. They can use this information for different purposes, including to monitor their personnel.

Monitoring your personnel is not forbidden, but employers should take into account employees’ privacy. For this reason, employers cannot just follow their employees all day long.

Monitoring personnel is allowed if it happens occasionally and the employer meets the conditions provided by the BES Personal Data Protection Act. If employees are monitored secretly, i.e. without knowing that they are being monitored, extra rules apply.

What conditions apply to the monitoring of person?

An employer who wants to monitor personnel should meet the requirements provided by the Personal Data Protection Act BES (PDPA BES), among other laws. The main conditions for personnel monitoring are:

• The employer should have a legitimate reason (the so-called “legitimate interest”). This interest outweighs the personnel’s privacy interests.
• There are no other possible ways to achieve the goal that are less invasive of employees’ privacy.
• The employer should inform employees of what is allowed and what is not and tell them that they may be monitored and how this will happen. Rules of conduct or a protocol could be used for this purpose.
• The employer should take into account employees’ right to confidential communication, e.g. when checking their e-mail or telephone.

What conditions apply to the secret monitoring of personnel?

 

In addition to the conditions for “regular” monitoring, the secret monitoring of personnel is subject to the following, additional conditions:

• The employer has a reasonable suspicion that one or more employees are doing something that is punishable or forbidden.
• Afterwards, the employer should always inform the staff members concerned of the secret monitoring, even if the monitoring has not revealed that the suspicion was well-founded.

Is my employer allowed to monitor my e-mail and internet use?

Yes, this is allowed. Your employer may make e-mail and internet use in the workplace subject to conditions or even prohibit certain types of use. Next, your employer may conduct checks, though always subject to the conditions regarding personnel monitoring laid down in the Personal Data Protection Act BES, among other laws.

General Monitoring
Your employer can, for example, monitor random employees to check whether they are making unauthorized use of e-mail or the internet, such as by visiting porn sites or downloading music and movie files.

Secret Monitoring
If your employer suspects misuse by one or more employees, the employer may conduct a specific check of the e-mail and internet use by this/these individual employee(s), subject to certain conditions. This sort of secret monitoring, i.e. monitoring without the employees’ previous knowledge, is subject to extra conditions.

Purpose of the Monitoring
Before starting monitoring, your employer should define the purpose for which the monitoring is required. The purpose of the monitoring will determine how extensive the monitoring may be and how this monitoring may be conducted. Purposes of monitoring could be system and network security, protecting company secrets, or reducing expenses and wasting of time.
When your employer suspects misuse, a brief, specific check will often be enough.

What general rules of conduct apply to e-mail and internet use in the workplace?

If your employer has no rules of conduct or protocol in place for e-mail and internet use in the workplace, the following general rules of conduct apply.

Your employer cannot ban all private e-mail and internet use during work hours. You have a right to a certain level of privacy in the workplace.

Your e-mail and internet use should, however, stay within reasonable limits. Also, you should consider the contents of your e-mail and of the websites you visit. Watching porn during work hours, for example, is not allowed.

Is my employer allowed to monitor what I do on social media?

Yes, this is allowed. For example, your employer may occasionally monitor what people are saying about his or her organization on social media by searching on the name of the organization. In doing so, your employer does have to meet the conditions for personnel monitoring laid down in the BES Personal Data Protection Act, among other laws.

Note that your employer may only check public information on social media. Your employer cannot force you to add him or her as a friend on Facebook, for example, or to provide him or her with the passwords needed to log into your account.

Guidelines on Social Media Monitoring
Your employer should let employees know in advance that they may be monitored. It is recommended for your employer to regulate this matter in a set of internal regulations, comparable to guidelines for monitoring employees’ e-mail and internet use.

Is my employer allowed to read my e-mail when I am out of the office?

Yes, this is allowed if the e-mail is related to the business. You can keep your business mail separate from your private mail by storing your private mail in a different folder (which you could name “Personal”), or by adding the word “personal” in the message title.

If it is evident from the message title that an e-mail is personal, your employer is not allowed to read that message. If business and private mail have not been separated, your employer should take into account that employees will receive and send private messages. When reading your mail, your employer should skip the private messages as much as possible.

Regulations on E-mail Monitoring
It is recommendable for your employer to let you know by means of regulations that your business e-mail may be checked during vacation or illness. This way, you will know ahead of time that your employer may read your e-mail.

Is my employer allowed to monitor my telephone use?

If your employer has indications that employees may be misusing their telephones in the workplace, he or she may monitor telephone use. In doing so, however, your employer must meet the conditions for personnel monitoring laid down in the BES Personal Data Protection Act, among other laws.

As an employee, you have the right to occasionally use your company telephone to make a private call. In other words, your employer cannot admonish you for incidental private use of your company telephone. Your employer does have the right, however, to keep an eye on the cost of such use.

Your employer may receive a monthly anonymized report of all most expensive calls. By conducting random checks, your employer may subsequently verify which employee is responsible for those calls and ask that employee for an explanation.

Preventing Expensive Calls
Your employer may also try to prevent expensive calls, e.g. by blocking calls to international numbers. If this results in reduced expenses, your employer will probably no longer need to monitor the cost of individual employees’ phone calls.

Is my employer allowed to monitor the use of my company cell phone?

If you make calls using a cell phone of your employer and you have agreed that you are not allowed to use this phone for private calls, your employer may monitor your calling behavior if he or she has a reasonable suspicion of misuse, e.g. by requesting the itemized telephone bill.
If no agreements were made on the use of your mobile phone for private calls, you have the right to make an occasional private call. However, your employer has the right to monitor the cost of those private calls.

Is my employer allowed to record my phone calls?

Your employer is only allowed to record your phone calls if this is necessary and provided your employer meets the conditions laid down in the Personal Data Protection Act BES, among other laws.

For example, employers may record phone calls to:

• improve the telephone service provided by employees in a call center;
• prove a suspicion of fraud by an employee;
• check whether a customer’s complaint is justified.

Notifying Recordings

Your employer should notify you on the spot that your phone call will be recorded, e.g. by means of an audio signal at the start of the recording. Likewise, your employer should previously explain to employees that this signal means that a recording is starting. In other words, it is not enough for your employer to tell you once that your calls may be recorded at the start of your employment.

Your employer should also previously inform the person you are calling that the call will be recorded and what the recording of the call will be used for, e.g. for training purpose.

Is my employer allowed to secretly record my phone calls?

Your employer is allowed to secretly record phone calls in a few exceptional situations only. These situations are: threats, bomb alerts, or a suspicion against you of criminal behavior, such as leaking company secrets. When secretly recording phone calls, your employer must meet the conditions for secret monitoring of personnel laid down in the Personal Data Protection Act BES, among other laws.

In addition, your employer must provide adequate guarantees in relation to the secret recordings, e.g. by making sure that only authorized people have access to those recordings and by having the recordings destroyed automatically if they show that you have done nothing illegal.

Also, your employer may not keep the recordings for longer than is necessary, preferably for not more than six months.

Is my employer allowed to continuously record my phone calls?

Continuously recording phone calls is necessary in some types of service, such as stock exchange orders placed by telephone. A recording is then required as proof that an agreement was entered into. Your employer has no other way of obtaining such proof.
This is why, in this type of situations, your employer is allowed to continuously record your phone calls.

Your employer may only use the recordings of your phone calls as proof of the agreement entered into, and not for any other purposes such as guiding or assessing you as an employee.

Is my employer allowed to monitor me with a (hidden) camera?

Under certain conditions, your employer is allowed to use camera surveillance to monitor personnel. A hidden camera is not normally allowed. However, in case of frequent theft or fraud in your workplace, your employer is allowed to use a hidden camera to monitor employees, subject to strict conditions. You can find more information in the section on Camera Surveillance in the Workplace.

Is my employer allowed to equip my car with a tracking system?

Yes, this is allowed if your employer complies with the conditions for personnel monitoring laid down in the Personal Data Protection Act BES, among other laws. The main condition is that your employer should have a legitimate reason (legitimate interest) and that a tracking system such as a black box, board computer, or GPS system is necessary to satisfy that interest.

An example of a legitimate interest is that your employer wants to be able to verify which car is closest to a customer so that he or she can send this car to the customer.

Privacy Review

Before equipping your car with a tracking system, your employer should first conduct a privacy review. This means that your employer should weigh your interests and rights against his or her own interests.

In addition, your employer should tell you why the tracking system collects data, when this happens, and what sort of data are collected.

Monitoring Private Use
During your private time, your interests usually carry more weight than your employer’s interests in monitoring you. In many companies, the black box, board computer, or GPS system can be turned off during private time.

Can I be forced to provide my employer with a fingerprint?

Your employer may use an access or time registration system that works based on your fingerprint. In that case, you have an obligation to provide one fingerprint.

This type of biometric systems usually does not store your fingerprint, but just an encrypted code. This code allows your employer to check whether it is you. The code does not allow reconstructing your fingerprint. The law does require your employer to set up such a system in a careful and secure way.

Note that your employer may only use your fingerprint for access control or time registration, not for any other purpose.

What is a personnel surveillance system?

A personnel surveillance system is any automated system that can be used to monitor personnel. If an employer does not use a certain system to monitor personnel, but the system could be used for that purpose, it is also considered a personnel surveillance system. Personnel surveillance systems are therefore very frequent in organizations.

Examples of personnel surveillance systems are:

• (secret) camera surveillance;
• switchboards;
• black box, board computer, or GPS system;
• (filter) software for monitoring e-mail and internet use;
• a time clock or other access control systems;
• badges or chip cards designed to monitor access, presence, movements and/or payments.

Can I inspect my personal data kept by my employer and/or ask to correct or remove them?

Yes, you can. You have the right to inspect your data held by your employer. You can also ask for such data to be corrected or removed.

Where can I go if I have a complaint about personnel surveillance?

First of all, you should go to your employer. If your employer does not respond or you are unhappy with the response, you can address your complaint to your union.

Going to Court
You can also go to court, where you can invoke the rights conferred to you under the BES Personal Data Protection Act. For example, you can ask the judge to prohibit the processing of your personal data, ask for reparation for the (adverse) consequences, or claim damages.