The use of technology in broadly defined employee activity control is nothing new. However, the legislation regulating the issues of employee monitoring has been in effect for a relatively short period, i.e., since 25 May 2018. Subsequent changes to these regulations were introduced by the Act of 21 February 2019 on amending certain acts in connection with the enforcement of the GDPR (Journal of Laws, item 730), which entered into force on 4 May 2019. For these reasons, employers should review their monitoring policies and verify whether they comply with the applicable regulations.
Video monitoring is a commonly used form of monitoring in workplaces. The condition authorizing the use of this type of monitoring is the need to ensure the safety of employees, property protection, production control, or to keep confidential information whose disclosure might expose the employer to detriment. As a rule, video monitoring should not be used in sanitary rooms, cloakrooms, canteens, and smoking rooms. The provisions of the Labour Code preclude the possibility of monitoring premises that have been made available to a trade union. Monitoring records should be kept for a period not exceeding three months from the date of recording. The Labour Code provides for the possibility of extending the three-month period where image recordings constitute evidence in legal proceedings or where the employer becomes aware that they can constitute evidence in such proceedings. In such a case, the period is extended pending the final conclusion of the proceedings.
Pursuant to the provisions of the Labour Code, employers may also use other forms of monitoring, including, in particular, electronic mail monitoring. These can only be used where necessary to ensure the organization of work enabling full use of the working time and proper use of the tools made available to an employee. In addition, they may not violate the confidentiality of correspondence and other personal interests of an employee. The legislator does not specify the period for which an employer should keep records of monitoring forms other than video monitoring. However, in view of the regulations resulting from the GDPR, one should be guided by the directive which stipulates that the records should be kept for a period no longer than necessary to achieve the monitoring objectives.
Both in the light of the provisions of the Labour Code and the GDPR, it is very important to properly inform employees about the monitoring used. The provisions containing information on the purpose, scope, and method of monitoring should be incorporated into a collective agreement or work regulations. In the case of employers that are not covered by a collective agreement or that are not required to put in place work regulations, information on the purpose, scope, and method of monitoring should be included in the employer’s notice. The employer should also inform its employees about the launch of monitoring, in a manner adopted by the employer, no later than two weeks before its launch. In addition, employers are required to provide each new employee with information about the purpose, scope, and method of monitoring in writing before the employee is allowed to work. Pursuant to the provisions of the Labour Code, monitored rooms and premises should be marked in a visible and legible manner, using appropriate signs or sound notices, no later than one day before the monitoring is launched. The above requirement applies to other forms of monitoring, as appropriate.
It should be noted that irrespective of the provisions of labour law, employers processing personal data in connection with monitoring should strictly follow the principles of handling data set out in the GDPR; in particular, they should only process data that are necessary for the achievement of specific objectives and provide them with protection against unauthorized or unlawful processing and accidental loss, destruction, or damage, by appropriate technical or organizational measures.