The location of service cell phones by employers raises considerable legal and ethical questions. Companies are striving for efficiency and control, but this confronts the personal rights of the employees and strict data protection regulations.
Legal basics and requirements
The location tracking of service cell phones is only permitted under certain conditions. Data protection regulations, in particular the General Data Protection Regulation (GDPR) and the Telecommunications Act (§ 98 TKG), set tight limits. A location is only allowed if there is a voluntary and informed consent of the employee. This consent must be clearly documented and can be revoked at any time. In addition, the purpose of the location must be proportionate and limit itself to necessary operational requirements.
According to the German legal information, the employer may generally collect and use all the data he needs to carry out the employment relationship. However, the cell phone location is usually not objectively required. In order to be able to describe an employee location by the smartphone as objectively, the meaning must be clearly recognizable. Obiturated concerns may be, for example, the general reduction in driving times, more efficient application planning in transportation and a more transparent presentation of the work performance for billing purposes.
Information obligation of the employer
A secret location of service cell phones is inadmissible. Employers are obliged to provide their employees transparently about possible location tracking. This includes information about the purpose of the measure, the scope of the data collected and the responsible bodies that have access to it. Ideally, this information should be recorded in writing in a company agreement or a supplement to the employment contract. If such a regulation is missing, employees should assume that the service cell phone may only be used for official purposes.
Restrictions and limits of location
The location is also subject to strict restrictions if the consent is available. Location data may only be recorded during working hours and must serve a legitimate operational purpose. Monitoring in breaks or after work is not permitted. A complete control of the movements of an employee is also inadmissible, even during working hours.
According to Haufe.de, employers are obliged to protect the proportionality of their measures. An unnecessarily detailed movement profile of an employee represents an inadmissible intervention in its privacy. Companies should therefore carefully check whether a location is actually necessary or whether milder funds are sufficient to achieve the purpose.
Right of co -determination of the works council
In companies with a works council, the introduction of location systems is subject to the obligation to co -determine in accordance with Section 87 (1) No. 6 Operating Constitution Act (BetrVG). Without the consent of the works council, the location tracking of service cell phones is not permitted. The works council has the option of contradicting the measure or demanding additional protective measures for the employees.
According to the DGB legal protection, there is an obligation to co -determine because the location affects the order behavior of the employees and intervenes in their personal rights. In practice, this means that an introduction can be contested without the consent of the works council and, if necessary, must be reversed.
Consequences with inadmissible location
Violations of data protection regulations can result in considerable consequences for employers. Unauthorized location tracking can be punished with high fines. The General Data Protection Regulation (GDPR) provides for up to 20 million euros or a quarter of the global annual turnover. In addition, affected employees can claim claims for damages if their rights have been violated.
Editor finance.net