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As announced by the German Federal Government in its privacy work program that formed part of its coalition agreement (see the Global Privacy Dispatch in the January issue of the Privacy Advisor), the German Federal Ministry of the Interior (
Bundesinnenministerium - BMI
) published on March 31 first guidelines for a new section on employee privacy rules to be introduced into the German Federal Data Protection Act (FDPA).
The new provisions are intended to help both companies and employees better understand their respective rights and duties and produce more legal certainty with respect to the collection and processing of employee data. All in all, the amendments shall focus on implementing existing case law by the German labour courts and on closing loopholes in the legislation.
According to the guidelines, the new legislation will centre around the following issues:
- Information from applicants: According to existing case law, an employer can only ask the candidate questions that are reasonable, legitimate, and do not amount to a disproportionate invasion of the candidate’s privacy. These limitations will be introduced into the amended FDPA
- Medical examinations: it will be regulated in detail what kind of medical examinations and drug screening an employer might require a candidate to undergo
- Compliance: the new provisions shall provide more clarity to the conditions under which an employer may collect and process data for compliance purposes
- Video surveillance: the permissibility of video surveillance at the workplace shall be generally limited to what is required for vital interests of the employer
- Location-based services: locating employees by technical means (e.g. GPS) shall only be lawful during working hours and with a view to safety interests of the employee or for the purpose of coordinating the assignment of personnel
- Biometric procedures: biometric procedures shall be limited to what is required for identifying individuals (in particular access controls etc.)
- Internet and e-mail: the employer shall be entitled to reasonably monitor Internet and e-mail use at the workplace (in particular for security reasons as well as for compliance purposes and combating corruption)
The BMI has declared that a first draft bill shall be presented before parliamentary recess in summer 2010.
