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 monitoring form commonly
used in workplaces. The condition authorising the
use of this type of monitoring is the need to use it
to ensure the safety of employees or property
protection or 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 of the fact 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 organisation 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 unauthorised or
unlawful processing and accidental loss, destruction
or damage, by appropriate technical or
organisational measures.
MILLER CANFIELD
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.