rome 2012 conference monitoring of the employees

Lauro Sovani & Associati

Employee Monitoring: Employee Monitoring: Effective Measures Effective Measures

Investigative and Legal Strategies

Rome, January 2012 Rosanna Sovani

Lauro Sovani & Associati2

Leading Actors

Employer (the “Controller”)

Employee (the “Controlled”)

Privacy Authority

Labour Office and

Works Council

the “Referee”


Area of Risk

- theft - sickness / absence

from work- unfair competition - disloyalty - risks/security- faked company’s

books

- disclosure of confidential information

- violation of patent, trademarks, and other IP rights

- inaccurate use of company’s data

- IT offence


How to Manage the Area of Risk?

- a prevention strategy

- implementation of risk management tools


Risk Prevention


Types of Risk Prevention Tools

Contractual

A. Non competition clause

B. Pre-hiring investigations

C. Privacy policy

D. Company’s policy

E. Return of company’s goods

Extra-contractual

F. Authorized controlls from Works Council- Labour office

G. Whistleblowing


A. Non-competition Clause

Art. 2125 of the Italian Civil Code, according to which the employer limits – following the termination of the employment contract - the former employee’s activity in competition with the employer’s business.

PROS CONS

the former employee is prevented to work for competitors

- a compensation to the former employee must be paid - difficult to enforce


B. Pre-hiring Investigations

PROS CONS

-Evaluation of employment history and skills- Evaluation of employee historical health data and compatibility of the employee’s health status with respect to the assigned tasks

- They can’t be used to investigate personal opinion or any other fact not linked to the employee’s working attitude

- They can’t be used for discriminatory purposes


Aptitude Tests / Psicological Tests: lawful

yes to the extent that they are not potentialy prejudicial for the employee

and they must be finalised to the assessment of the employee’s attitude with

respect to the tasks that will have to be performed


C. Privacy Policy

The employer must previously inform the employee (orally or in writing) on its personal data processing, and in particular on the following data: - purpose/types of processing - duty/options of the data assignment - consequences for refusal to communicate the data - entities to whom the data will be communicated to - process owner responsible for the data processing - options to excersize the right to have access to the

data


PROS CONS

The employer may use the employee’s personal data for regular performance appraisal

- The information must be pertinent and not exceed the scope for which they have been collected- The employer must use the best care in the protection of the employees sensible data


D. Company’s Policy

Company’s Trade Unions (i.e. “Confindustria”) and the Privacy Authority reccomend a transparent company guideline, which specifies the

following:

- To what extent electronic equipment can be used for personal purposes

- If and to what extent the employer has the legal right in monitoring and controlling employees

- What information will be recorded and who has access to them

- What measures including disciplinary will be adopted if company equipment are used improperly


PROS CONS

- The employer can take action to control and monitor based on company policy without communicating it to the employee

- The employer can take necessary actions and sanctions in case the employee has not observed company policies

-The employer must always respect the limits of the necessity and proportionality of the controls and objectives of possible sanctions


E. Return of Company’s Goods Clause

Company’s Goods

“At of termination of your employment for any reason, the Company must have access to its assets returned, you agree to return all company equipment and provide support to access information from company equipment and ensure that all personal data are removed.”


• In Italy, remote monitoring - that is, monitoring by an employer that is directed or potentially directed at the working activity of its employees - is prohibited by Section 4 of the Workers Bill (Law 300/1970) save to the case of “defensive monitoring”.

Unintentional Monitoring (Section 4, para 2,Workers’ Bill)

• except for purposes related to the employer's organisation or productivity, or for security reasons, in which case employers are required to implement a co-determination procedure with the Works Council (or, where there are no such representatives, with the competent labour office)

agreement with Works Council

authorization by the Labour Office

F. Autorization by the Works Council and Labour Office for the Monitoring through Electronic

Devices


PROS CONS

-Gives the employer the possibility to lawfully use remote monitoring devices

- The collected evidences can be used against the misconduct of the employee

-Interference of the Works Council in the employer’s internal organisation

- Risk of a denied authorization from the Works Council or Labour Office


G. Whistleblowing

• Internal structured procedure designed to alert the employer of irregularities in the workplace and to collect evidence of such irregularities. In this regard, employees' reports can be transmitted to a specific body created for this purpose or to the company’s senior manager, through confidential channels or even anonymously.


In ITALY not yet regulated

The Privacy Authority pushes for companies adopting provision regulating the different ways to alert of any irregularity made against the company

Mainly used in USA and UK using “hotlines”

… continues


… continues

PROS CONS

To be promptly informed on any irregularity against the Company

-Necessity to implement a specific body that collects the alerts - By guaranteeing the anonymity there is the risk of collecting groundless alerts -The employer may not act against the employee that has alerted the authorities if not previously verified a groundless alert


Actions for the Employer to Manage the Risk


The employer can exercise its directive and disciplinary power on the employee through 3 types of monitoring:

1. difensive2. remote 3. human

How can the Employer Manage the Risk?


1. Difensive Monitoring

Italian law recognises an employer's right to remote monitoring its employees' working activities, where such monitoring is intended to safeguard the employer's business assets or prevent offences in the workplace

Offence of corporate assets: unlawful use of company’s goods

Committment of criminal offences in the workplace


PROS CONS

Pre-authorisation is not necessary from the Works Council or Labour Office

-Necessary to judge and evaluate post-conduct history

- It is not excluded the applicability of Section 4 of the Workers’ Bill in all those cases where the defensive monitoring refers to the employees activity


2. Remote Monitoring

Definition of remote

- spatial

- perceptive

- temporal

Definition of working activity

- Performance of the tasks- any activity linked to the fulfillment of the employee’s performance duty


Electronic Devices Available for the Employer

- Badge

- PC

- Telephone

- Camera

- E-mail

- Internet

- Biometric data

- RFID

- GPS

- Remote training


Badge

Verifies the access to the companies premises

monitoring of the employees working hours and attendence to work

Lawful monitoring because:

- refers not to the performance of the tasks - is voulanterely actioned by the employee

Part of the Italian case law for this type of monitoring must be subject to Section 4 of the Workers’ Bill

however


The Case

1. Alfa Company holds a garage where the employees can park their car at work. To enter, an electronic device to be activeted with a personal badge has been installed

2. The badge records the identity of who enters and the time, allowing the Company to check the time of entry and exit and the attendance of the employees at the workplace

3. It happens that, cross-checking the data supplied from the device installed in the garage, Alfa Company terminates the employee Tizio, contesting a misconduct in behaviour/activity

4. Tizio challenges the lawfulness of his dismissal because Alfa Company illegaly collected data on him through the electronic device not authorized by the Works Council

… … … … … … …


Personal Computer

For employees working outside of the office the company’s personal computer containing a monitoring application which can record employee start and end of working activities.

Any evidence collected through the above personal computer may be used against the employee to the extent that the program has been previously authorized by Works Council or the Labour Office


The Case

1. Some employees within a Company, performing medical and scientific information activity, were equipped with laptop with an installed program recording and sending, through the web, to the Company’s server all the orders placed by the employees. Through such program the Company was able to indirectly monitor the employees’ daily activity.

2. One of these employees, after some verbal warnings, asked to the Labour Office to verify the lawfulness of said program.

….…………

Lauro Sovani & Associati

The Company Telephone

Continuous telephone conversation of employees for private purposes

Lawful monitoring since:

-The monitored behaviour is unrelated to the fulfilment of the employee’s activity

- The telephone is a Company asset


Telephonic Exchange Check

Yes

To the extent that it is not extended to the content of the phone call and it is limited to the monitoring of the last digit of the called number and its duration

No• Recording of complete

telephone number• Possibility to input during the

call• Recording of the call with

some exceptions


The Case

1. Alfa Company terminates Tizio for private use of the company’s phone

2. Tizio challenges the dismissal, on the grounds that the evidence collected through an electronic device was without a prior authorization of the Labour Office or the Works Council

……………


Also the employee can controll the employer

How?

By recording phone calls with his employer to report injuries from the latter


The telephone recordings are not considered as evidence but a means of documentation

Yes-Usable only if recorded by persons who take part to the conversation

- Its content can be disclosed only for a right to defend

No-If the conversation is recorded by a third party or if part of the conversation is a third party, it must be authorized

- In criminal trial if it is recorded by a third party it is considered as an interception and therefore needs court approval


The Cameras

Yes- If agreed with the Works

Council or Labour Office and the employees have been informed

- If used as extrema ratio (last resort)

No- If unilaterally installed

- If installed into company’s premises reserved to the employees

Bathrooms, showers, lockers, recreational places

Videosecurity at the workplaces


PRIVACY

AUTHORITYlimitation

Prior Checking

preliminary verificationof video surveillance

by the Authority

Access to RecordedImages

Limitation of partieswho can have accessto recorded immages

Limited Archivingof Images

max periodof archiving

of recorded imagesFixed to 7 days

…continues


The Case

1. A supermarket installs videocameras recording the activity of a cash counter, due to some suspects of theft

2. The videocamera installed within the supermarket shows an employee having the cashier at tasks keeping some amount of money from the cash register

3. Consequently the employee is dismissed

4. The employee challenges the lawfulness of her dismissal alleging that the images showing the evidence of her miscunduct can’t be used since the evidence comes from a videocamera installed without the authorization of the Works Council

… … … … … … …


E-mail [email protected]

It is a lawful monitoring tool since it lacks personality (personal use). The employee is not the holder of exclusive use of it

- It is lawful to monitor the employee’s email account for purposes connected to the company activity

- The password should be known to the employer

Absentemployee


Internet

Yes - Monitoring through direct

access to the computer

- Challenge the misuse of computer without investigating the web site visited

No

- Remote monitoring with software which verifies web sites visited (unless it is authorized by the Works Council or Labour Office)


The Case

1. A company working in the chemical pharmaceutical industry installs a program on the employees' pc, where it is able to record the web site address visited by employees during the time working

2. The company applies an in-house policy regulating the access to Internet under which the access for personal use is forbidden

3. Notwithstanding the policy, it results that an employee has periodically access to internet for personal reasons

4. As a result the employee is terminated. The employee challenges his dismissal alleging that the program has been installed in the pc without the prior authorisation of the Works Council

……………


Finger prints, retinal or iris shape, tone of voice

Justified only in particular cases, such as to protect :

- dangerous areas- areas reserved for security purpose

- places where highly confidential documents are preserved - places for the protection of company’s important assets

Biometric Data


Radio-Frequency Identification(RFID)

Allows the employer to monitor continously the movements of the employees

WHAT IS IT? a microchip embedded inside the badge

Yes - If the principles of propoportionality and necessity are respected

- if RFID records only the time to entry and the exit of the employee

- otherwise provided by Article 4 section 2 of the Workers’ Bill


Global Position System (GPS)

It is used to localize the position of vehicles and can also indirectly monitor workers in transfer (i.e. salesman, truck driver, seller)

Yes

- for organizational and productive reasons or for security job

- installation under Article 4 section 2 of the Workers’ Bill

No

- if it used to monitor the activity of the employee


Remote Training

Web programs or computer available to employees to perform training and professional courses by remote

Permits remote monitoring during the training

Lawful but it is necessary to have the autorisation of the Works Council or Labour Office if used to monitor the employee’s activity


Case

1. A civil aviation company schedules for the pilots 10

hours of training 2. The company provides them a laptop to follow the

training with which is able to monitor indirectly the start and end of the training activity

3. The pilots trade union inquires the Privacy Authority on the lawfulness of such practice

… … … … … …


3. “Human” Monitoring

made via:

- The employer - Private investigator- Internal auditing- Health checks

it is lawful because:

- Focused to check the employee’s misconduct

- It is not a remote monitoring

Articles 2 and 3 of the Workers’ Bill : the employer can use guards ONLY to protect the company’s property. The name of the guards must be notified and presented to the employees


Investigative Activity

Permitted:

The employer relies on investigative agency to check the illicit/ unlawful behaviour

of employee

Even if measured covertlyOutside the workplace


“Hidden”Monitoring Peculiarity

LAWFUL

- to overlook unlawful behaviour of the employee not related to the mere breach of contract

- to assess mere suspect of injuries made by the employee


The Case

1. A company hires Tizio with the duties of a salesmen

2. The company noticed the lack of performance of the employee and decided to enroll an

investigative agency to verify any misconduct on the part of the employee

3. The investigation shows that when the employee works outside the company premises he is often idle

4. As a consequence the Company dismisses him

… … … … …


Personal Monitoring of Employee

Article 6 of the Workers’ Bill: monitoring the person (body and clothes) are forbidden

ButLawful if

- Necessary for the protection of the company’s assets (i.e. check unlawfull appropiations of company’s assets)

- Justified by the type of product worked (precious value /easy removability)

- previous agreement with Works Council or Labour Office


… continues

WHEN? Outside the workplace

HOW? In a casual/impartial way, to respect of the employee dignity and privacy

Type and means of monitoring are identified either:• Through an agreement with the Works Council or• With decision of the rispective service of the Labour Office


The Case “Luxottica”

To reduce the high number of thefts the company orderd to its employees to bring with them only a transparent bag on the company’s premises - provided by the company to each employee - where personal stuff could be kept. Any other bag and/or backpack was forbidden


Internal Auditing

The employer shall carry inspections by external staff on employees' computers for control and prevention of illegal activity

Yes if the monitoring activity is regulated through an in-

house policy and if the employer has informed the employees thereof.


Health Assistance

The medical visit is a check made by employer through the Social Security Institute to assess the illness/health status of the absent employee

The employee has to be avaiable at his home in specific times provided by law

Medical visit is aimed to assess the incombatibility between the illness/health status and the working performance


The New Frontier of Monitoring


De Privacy

What is it?personal information published on social networks regarding the employee who has the perception of having a small and private

personal area

Case Law:- The information there published are not subject to the protection under

article 4 of the Workers’ Bill because it is not installed by the employerbut

- Subject to personal data protection although published by the same person


It is advisable to regulate the De Privacy through in-house policy

In any case according to the Privacy Authority

Misconduct behaviour aknowledged through social network have the same value of those aknowledged in public contest

It is therefore lawful for the employer to use information on the employee aknowledged throghout social networks to the extent that their use is not

arbitrary and/or unrelated to work activity.

Feedback from the Privacy Authority


Evidences Collected by the Monitoring of the Employees: how to use them


Evidences Lawfully Collected by the Employer

The employee is subject to:

- Care (diligence): according to Article 1176 of the Italian Civil Code the employee must put the care of a good family father on the performance of the contract

- Loyalty: according to article 2105 of the Italian Civi Code in the performance of his tasks, the employee must abstain from behaviours which are against the employer


Employer can start a disciplinary proceedings

Sanctions: provided by the Bargaining Agreement. The maximum sanction is the dismissal

The Court will evaluate if the sanction applied by the employer to the employee is proportional to the misconduct

… In case of Breach of Duties:


Sanction:

Processual the collected evidences

can not be used against sanction the employee

Criminal

fine from € 154 up to € 1,549 and in critical cases imprisonement up to one year

If the employer collects the evidence unlawfully

rome 2012 conference monitoring of the employees

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