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Boss spies: How can I defend myself against surveillance at work?

2021-02-09T19:49:37.499Z


New office software records exactly how productive each individual employee is. That is actually forbidden. But our author knows: if he defends himself, he'll be kicked out. And now?


Icon: enlarge

Has everything in view - and maybe too much?

Not everyone is allowed to use surveillance software at will

Photo: Paul Bradbury / DEEPOL / plainpicture

The editor is aware of the author of this text.

But he would like to remain anonymous because otherwise he would not be able to report freely about his experiences.

My day-to-day work in sales at a German Internet company changed fundamentally a few months ago.

I used to take my motivation out of a sense of responsibility and identification, but now I only work under pressure.

The reason: My employer has implemented a new program that, among other things, measures employee performance.

At first I found the program helpful.

Roughly simplified, it automatically reads customer login data and makes it available for further processing.

In this way, their profiles can be completed and handed over to the responsible colleagues, who then get in touch with the customer in order to offer subscriptions and services.

The new tool made my work easier and more efficient, and I also provide higher quality data.

But then a colleague wrote to me that I should take a look at our new dashboard.

Roughly speaking, a dashboard is a user interface on which, for example, news, upcoming and completed tasks or statistics are summarized.

The boss knows everything about me - although we don't know each other

So I opened the link and was speechless: One diagram shows the numbers of processed data per day and employee, two others show the error rates of the various employees.

So at a glance you can see which employee has done how well.

Who edited how many customer profiles?

Who has given it to the wrong colleague particularly often?

I can access the data, my colleague two tables away can do it - and so can the manager.

Although I've never seen her personally, she can remotely monitor my work meticulously.

I was shocked.

This page not only allows you to compare employees with one another - it's its clear purpose.

Although I was already used to a lot from my employer, it broke all boundaries.

I felt caught off guard, hurt and somehow angry too.

There were a lot of questions in my head: Can my boss collect such data?

Shouldn't he at least have asked my permission?

And if my feeling is confirmed and it is actually inadmissible: Should I stand up for my employee rights?

Many would now seek help from the works council.

But there is no employee representation in the company where I work, despite the four-digit number of employees.

In the hallway the rumor spreads that just saying the word “works council” is enough to give notice.

That is also the reason why I publish this text without my name.

Otherwise it would cost me the job.

So what to do

I am seeking advice from an employment lawyer.

"I have never seen a case like this on this scale before," says Dr.

Alexander Black Cock on the phone.

The Koblenz lawyer specializes in labor law.

Before we even get to the published colleague rankings, he says: "I consider the mere collection of data to be problematic." That is a significant encroachment on the right to self-determination.

“This is continuous power monitoring.

And permanent monitoring is not permitted. "

He refers to the so-called keylogger judgment: An employee had sued against the use of software that his employer had secretly installed.

The Federal Labor Court ruled in July 2017 that the collection of personal data using spyware is not permitted (file number 2 AZR 681/16).

The only exceptions would be a suspicion of a criminal offense or a serious breach of duty.

In my case, no spying software was installed, but it is still possible to trace who is making which step and when.

In addition, almost the entire working day takes place in the software.

The procedure is therefore equivalent to permanent monitoring.

My colleagues and I were not asked in advance whether we would consent to such data collection.

According to Birkhahn, the monitoring would not be permitted even if we agreed: "The consent would have to be given voluntarily." However, this is usually only guaranteed for an employee if he has any advantage from the regulation.

"With the best will in the world, you can't see it here."

When performance tracking is allowed

The concept of voluntariness here defines labor law and not the feeling of consenting without coercion.

Such a concession by the employees without their own benefit is simply not provided - because the employee is in the weaker position.

"What should an employee do?" Asks Birkhahn.

»If the employer says:› I can do performance tracking, we all benefit.

Please sign there. 'What do you do then?

There you sit and consider: Do I give my consent?

If you don't give it and stop the whole system, it won't go down so well with the employer. "

In a few exceptions, however, such performance tracking could also be permissible: namely, if the recording of the data also brings an advantage for the employee.

If royalties or commissions are to be distributed, the responsible employees would have to be identified.

Another example is the logbook of a company car, says Birkhahn.

This is also a kind of tracking, but employees have advantages if they can use the company car in their free time.

A prerequisite for a permissible control is therefore the voluntariness, this in turn depends on the fact that not only my boss has an advantage, but also me.

In my specific case with the dashboard, this does not apply: I neither receive a commission nor is there any operational need to record the individual work steps.

I have therefore quietly raised concerns about the legality of the process with my team leader.

His answer: Somehow it has to be checked that work is going on, and the program now makes the tool available.

So why not use it?

Birkhahn is downright baffled by this statement.

"One is seldom inclined to say that there is something legally nonsense, but this line of argument is really nonsensical," he says.

»If I hang up a camera and film my employees 24 hours a day, then of course the camera can do it technically.

It just doesn't mean that I can use the pictures. "

Rather, it is the responsibility of the company's data protection officers to ensure that personal data is only actually collected where it is allowed.

Among other things, companies are obliged to appoint such a representative if more than 20 employees automatically process personal data.

But should I actually contact our data protection officer?

Who can help if there is no works council?

If there is no trustworthy contact person in the company, employees can contact the responsible state data protection authority.

They then investigate the case and, if necessary, impose a fine.

But, according to Birkhahn, this is not without problems: »The question always arises: To what extent is an employee allowed to disclose internal company information to third parties, in particular to authorities, that may be illegal?

And to what extent does he have a duty of loyalty to the employer? ”In addition, one can be sure that there are at least factual consequences that, in the worst case, can even result in termination.

"Of course, no employer can offer that to be blackened by his own employee at the state data protection officer," says the lawyer.

The frustrating thing: the legal situation seems clear, but that doesn't help me very much.

I have already approached my team leader, my concerns have been averted.

Even if I can clearly state to the state data protection authority where applicable labor or data protection law is being violated, a complaint could cost me the job.

So I am thrown back on myself and can only ask myself one question: Do I want to continue working for this company?

No matter how I answer them - the grievances will persist for my colleagues.

Icon: The mirror

Source: spiegel

All business articles on 2021-02-09

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