Rome 2012 Conference Monitoring Of The Employees


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Rome 2012 Conference Monitoring Of The Employees

  1. 1. Employee Monitoring: Effective Measures Investigative and Legal StrategiesRome, January 2012 Rosanna Sovani Lauro Sovani & Associati
  2. 2. Leading Actors Employer (the “Controller”) Employee (the “Controlled”) Privacy Authority the “Referee” Labour Office and Works Council 2Lauro Sovani & Associati
  3. 3. Area of Risk- theft - disclosure of- sickness / absence confidential from work information- unfair competition - violation of patent,- disloyalty trademarks, and- risks/security other IP rights- faked company’s - inaccurate use of books company’s data - IT offence 3 Lauro Sovani & Associati
  4. 4. How to Manage the Area of Risk?- a prevention strategy- implementation of risk management tools 4 Lauro Sovani & Associati
  5. 5. Risk Prevention 5Lauro Sovani & Associati
  6. 6. Types of Risk Prevention Tools Contractual Extra-contractualA. Non competition clause F. Authorized controlls from WorksB. Pre-hiring investigations Council- Labour officeC. Privacy policy G. WhistleblowingD. Company’s policyE. Return of company’s goods 6 Lauro Sovani & Associati
  7. 7. A. Non-competition ClauseArt. 2125 of the Italian Civil Code, according to which theemployer limits – following the termination of the employmentcontract - the former employee’s activity in competition with theemployer’s business. PROS CONS the former employee is - a compensation to the former prevented to work for employee must be paid competitors - difficult to enforce 7 Lauro Sovani & Associati
  8. 8. B. Pre-hiring Investigations PROS CONS-Evaluation of employment history - They can’t be used to investigateand skills personal opinion or any other fact not- Evaluation of employee historical linked to the employee’s workinghealth data and compatibility of the attitudeemployee’s health status with - They can’t be used forrespect to the assigned tasks discriminatory purposes 8 Lauro Sovani & Associati
  9. 9. Aptitude Tests / Psicological Tests: lawful yes to the extent that they are not potentialy prejudicial for the employee andthey must be finalised to the assessment of the employee’s attitude with respect to the tasks that will have to be performed 9 Lauro Sovani & Associati
  10. 10. C. Privacy PolicyThe 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 thedata 10 Lauro Sovani & Associati
  11. 11. PROS CONS - The information must be pertinent and not exceed the scope for whichThe employer may use the they have been collectedemployee’s personal data for regular - The employer must use the bestperformance appraisal care in the protection of the employees sensible data 11 Lauro Sovani & Associati
  12. 12. 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 12 Lauro Sovani & Associati
  13. 13. PROS CONS- The employer can take action tocontrol and monitor based on -The employer must always respectcompany policy without the limits of the necessity andcommunicating it to the employee proportionality of the controls and objectives of possible sanctions- The employer can take necessaryactions and sanctions in case theemployee has not observed companypolicies 13 Lauro Sovani & Associati
  14. 14. 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.” 14 Lauro Sovani & Associati
  15. 15. F. Autorization by the Works Council and Labour Office for the Monitoring through Electronic Devices• 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 employers 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 authorization by the Works Council Labour Office 15 Lauro Sovani & Associati
  16. 16. PROS CONS-Gives the employer the possibility tolawfully use remote monitoringdevices -Interference of the Works Council in the employer’s internal organisation- The collected evidences can beused against the misconduct of the - Risk of a denied authorization fromemployee the Works Council or Labour Office 16 Lauro Sovani & Associati
  17. 17. 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. 17 Lauro Sovani & Associati
  18. 18. … continues The Privacy Authority pushes for companies adopting In ITALY not provision yet regulated regulating the Mainly used in USA and UK different ways to using “hotlines” alert of any irregularity made against the company 18 Lauro Sovani & Associati
  19. 19. … continues PROS CONS -Necessity to implement a specific body that collects the alerts - By guaranteeing the anonymity there is the risk of collecting To be promptly informed on any groundless alerts irregularity against the Company -The employer may not act against the employee that has alerted the authorities if not previously verified a groundless alert 19 Lauro Sovani & Associati
  20. 20. Actions for the Employer to Manage the Risk 20 Lauro Sovani & Associati
  21. 21. How can the Employer Manage the Risk?The employer can exercise its directive and disciplinary power on theemployee through 3 types of monitoring:1. difensive2. remote3. human 21 Lauro Sovani & Associati
  22. 22. 1. Difensive MonitoringItalian law recognises an employers right to remote monitoring itsemployees working activities, where such monitoring is intendedto safeguard the employers business assets or prevent offencesin the workplace Committment of Offence of corporate assets: unlawful criminal offences use of company’s goods in the workplace 22 Lauro Sovani & Associati
  23. 23. PROS CONS -Necessary to judge and evaluate post- conduct historyPre-authorisation is not necessaryfrom the Works Council or Labour - It is not excluded the applicability ofOffice Section 4 of the Workers’ Bill in all those cases where the defensive monitoring refers to the employees activity 23 Lauro Sovani & Associati
  24. 24. 2. Remote MonitoringDefinition of remote Definition of working activity - spatial - Performance of the tasks - perceptive - any activity linked to the fulfillment of the employee’s - temporal performance duty 24 Lauro Sovani & Associati
  25. 25. Electronic Devices Available for the Employer- Badge- PC- Telephone- Camera- E-mail- Internet- Biometric data- RFID- GPS- Remote training 25 Lauro Sovani & Associati
  26. 26. Badge Verifies the access to the monitoring of the employees working hours and attendence to companies premises work Lawful monitoring because: - refers not to the performance of the tasks - is voulanterely actioned by the employeehowever Part of the Italian case law for this type of monitoring must be subject to Section 4 of the Workers’ Bill 26 Lauro Sovani & Associati
  27. 27. The Case1. Alfa Company holds a garage where the employees can park their car atwork. To enter, an electronic device to be activeted with a personal badge hasbeen installed2. The badge records the identity of who enters and the time, allowing theCompany to check the time of entry and exit and the attendance of theemployees at the workplace3. It happens that, cross-checking the data supplied from the device installed in thegarage, Alfa Company terminates the employee Tizio, contesting a misconduct inbehaviour/activity4. Tizio challenges the lawfulness of his dismissal because Alfa Company illegalycollected data on him through the electronic device not authorized by the WorksCouncil ………………… 27 Lauro Sovani & Associati
  28. 28. Personal ComputerFor employees working outside of the office the company’spersonal computer containing a monitoring application which canrecord employee start and end of working activities. Any evidence collected through the above personal computermay be used against the employee to the extent that theprogram has been previously authorized by Works Council or theLabour Office 28 Lauro Sovani & Associati
  29. 29. The Case1. 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. ….………… 29 Lauro Sovani & Associati
  30. 30. The Company Telephone Continuous telephone conversation of employees for private purposes Lawful monitoring since:-The monitored behaviour is unrelated to the fulfilment of theemployee’s activity- The telephone is a Company asset Lauro Sovani & Associati
  31. 31. Telephonic Exchange Check Yes NoTo the extent that it is not • Recording of completeextended to the content of the telephone numberphone call and it is limited to • Possibility to input during thethe monitoring of the last digit callof the called number and its • Recording of the call withduration some exceptions 31 Lauro Sovani & Associati
  32. 32. The Case1. Alfa Company terminates Tizio for private use of the company’s phone2. Tizio challenges the dismissal, on the grounds that the evidence collectedthrough an electronic device was without a prior authorization of the LabourOffice or the Works Council …………… 32 Lauro Sovani & Associati
  33. 33. Also the employee can controll the employer How?By recording phone calls with his employer to report injuries from the latter 33 Lauro Sovani & Associati
  34. 34. The telephone recordings are not considered as evidence but a means of documentation Yes No-Usable only if recorded by -If the conversation is recorded bypersons who take part to the a third party or if part of theconversation conversation is a third party, it must be authorized- Its content can be disclosedonly for a right to defend - In criminal trial if it is recorded by a third party it is considered as an interception and therefore needs court approval 34 Lauro Sovani & Associati
  35. 35. The Cameras Videosecurity at the workplaces Yes No- If agreed with the Works - Council or Labour Office and If unilaterally installed the employees have been informed - If installed into company’s premises reserved to the employees- If used as extrema ratio (last resort) Bathrooms, showers, lockers, recreational places 35 Lauro Sovani & Associati
  36. 36. …continues PRIVACY AUTHORITY limitation Prior Checking Limited Archiving Access to Recorded of Images Images preliminary verification max period of video surveillance Limitation of parties of archiving by the Authority who can have access of recorded images to recorded immages Fixed to 7 days 36 Lauro Sovani & Associati
  37. 37. The Case1. A supermarket installs videocameras recording the activity of a cash counter, due to some suspects of theft2. The videocamera installed within the supermarket shows an employee having the cashier at tasks keeping some amount of money from the cash register3. Consequently the employee is dismissed4. 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 ………………… 37 Lauro Sovani & Associati
  38. 38. E-mail name@company.itIt is a lawful monitoring tool since it lacks personality (personal use). Theemployee 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 Absent employee 38 Lauro Sovani & Associati
  39. 39. Internet Yes No- Monitoring through direct - Remote monitoring with software access to the computer which verifies web sites visited (unless it is authorized by the- Challenge the misuse of Works Council or Labour Office) computer without investigating the web site visited 39 Lauro Sovani & Associati
  40. 40. The Case1. 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 working2. The company applies an in-house policy regulating the access to Internet under which the access for personal use is forbidden3. Notwithstanding the policy, it results that an employee has periodically access to internet for personal reasons4. 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 …………… 40 Lauro Sovani & Associati
  41. 41. Biometric Data 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 41 Lauro Sovani & Associati
  42. 42. Radio-Frequency Identification (RFID) WHAT IS IT? a microchip embedded inside the badge Allows the employer to monitor continously the movements of the employees Yes- If the principles of propoportionality and necessity are respected- if RFID records only the time to entry and the exit of theemployee- otherwise provided by Article 4 section 2 of the Workers’ Bill 42 Lauro Sovani & Associati
  43. 43. 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 No - for organizational and - if it used to monitor the productive reasons or for activity of the employee security job - installation under Article 4 section 2 of the Workers’ Bill 43 Lauro Sovani & Associati
  44. 44. Remote TrainingWeb programs or computer available to employees to perform training and professional courses by remote Permits remote monitoring during the trainingLawful but it is necessary to have the autorisation of the Works Council or Labour Office if used to monitor the employee’s activity 44 Lauro Sovani & Associati
  45. 45. Case1. A civil aviation company schedules for the pilots 10 hours of training2. The company provides them a laptop to follow the training with which is able to monitor indirectly the start and end of the training activity3. The pilots trade union inquires the Privacy Authority on the lawfulness of such practice ……………… 45 Lauro Sovani & Associati
  46. 46. 3. “Human” MonitoringArticles 2 and 3 of the Workers’ Bill : the employer can use guardsONLY to protect the company’s property. The name of the guardsmust be notified and presented to the employees made via: it is lawful because: - The employer - Focused to check the - Private investigator employee’s misconduct - Internal auditing - It is not a remote - Health checks monitoring 46 Lauro Sovani & Associati
  47. 47. Investigative Activity The employer relies oninvestigative agency to check the illicit/ unlawful behaviour of employee Permitted: Outside the workplace Even if measured covertly 47 Lauro Sovani & Associati
  48. 48. “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 48 Lauro Sovani & Associati
  49. 49. The Case1. A company hires Tizio with the duties of a salesmen2. The company noticed the lack of performance of the employee and decided to enroll aninvestigative agency to verify any misconduct onthe part of the employee3. The investigation shows that when the employee works outside the company premises he is often idle4. As a consequence the Company dismisses him …………… 49 Lauro Sovani & Associati
  50. 50. Personal Monitoring of EmployeeArticle 6 of the Workers’ Bill: monitoring the person (body and clothes) are forbidden But Lawful 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 50 Lauro Sovani & Associati
  51. 51. … continuesWHEN? Outside the workplaceHOW? In a casual/impartial way, to respect of the employee dignity and privacyType 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 51 Lauro Sovani & Associati
  52. 52. The Case “Luxottica”To reduce the high number of thefts the company orderdto its employees to bring with them only a transparentbag on the company’s premises - provided by thecompany to each employee - where personal stuff couldbe kept. Any other bag and/or backpack was forbidden 52Lauro Sovani & Associati
  53. 53. Internal AuditingThe employer shall carry inspections by external staff onemployees computers for control and prevention of illegalactivity Yesif the monitoring activity is regulated through an in-house policy and if the employer has informed theemployees thereof. 53Lauro Sovani & Associati
  54. 54. Health AssistanceThe medical visit is a check made by employer through the SocialSecurity Institute to assess the illness/health status of the absentemployeeThe employee has to be avaiable at his home in specific timesprovided by lawMedical visit is aimed to assess the incombatibility between theillness/health status and the working performance 54 Lauro Sovani & Associati
  55. 55. The New Frontier of Monitoring 55 Lauro Sovani & Associati
  56. 56. 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 employer but- Subject to personal data protection although published by the same person 56 Lauro Sovani & Associati
  57. 57. Feedback from the Privacy Authority 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 contestIt is therefore lawful for the employer to use information on the employeeaknowledged throghout social networks to the extent that their use is not arbitrary and/or unrelated to work activity. 57 Lauro Sovani & Associati
  58. 58. Evidences Collected by the Monitoring of the Employees: how to use them 58 Lauro Sovani & Associati
  59. 59. 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 59 Lauro Sovani & Associati
  60. 60. … In case of Breach of Duties:Employer can start adisciplinary proceedings The Court will evaluate if the sanction appliedSanctions: provided by by the employer to thethe Bargaining employee isAgreement. The proportional to themaximum sanction is the misconductdismissal 60 Lauro Sovani & Associati
  61. 61. If the employer collects the evidence unlawfully Sanction: Processual Criminalthe collected evidences fine from € 154 up to €can not be used against 1,549 and in critical casessanction the employee imprisonement up to one year 61 Lauro Sovani & Associati
  62. 62. Latest News 62Lauro Sovani & Associati
  63. 63. Law of August 2011 Law n. 148/2011 Article 4 of the Worker’s Bill may be derogated by means of in-house collective agreement with the Trade Unions 63Lauro Sovani & Associati
  64. 64. Avv. Rosanna Sovani 64Lauro Sovani & Associati