Rome 2012 Conference Monitoring Of The Employees

Employee Monitoring:
Effective Measures

Investigative and Legal Strategies

Rome, January 2012 Rosanna Sovani

Lauro Sovani & Associati

Leading Actors

Employer (the “Controller”)
Employee (the “Controlled”)

Privacy Authority
the “Referee”
Labour Office and
Works Council

2

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

How to Manage the Area of Risk?

- a prevention strategy

- implementation of risk management tools

4

Risk Prevention

5

Types of Risk Prevention Tools

Contractual Extra-contractual

A. Non competition clause F. Authorized controlls from Works
B. Pre-hiring investigations Council- Labour office
C. Privacy policy G. Whistleblowing
D. Company’s policy
E. Return of company’s goods

6

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 - a compensation to the former
prevented to work for employee must be paid
competitors - difficult to enforce

7

B. Pre-hiring Investigations

PROS CONS

-Evaluation of employment history - They can’t be used to investigate
and skills personal opinion or any other fact not
- Evaluation of employee historical linked to the employee’s working
health data and compatibility of the attitude
employee’s health status with - They can’t be used for
respect to the assigned tasks discriminatory purposes

8

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

9

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
10

PROS CONS

- The information must be pertinent
and not exceed the scope for which
The employer may use the they have been collected
employee’s personal data for regular - The employer must use the best
performance appraisal care in the protection of the
employees sensible data

11

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

PROS CONS

- The employer can take action to
control and monitor based on -The employer must always respect
company policy without the limits of the necessity and
communicating it to the employee proportionality of the controls and
objectives of possible sanctions
- The employer can take necessary
actions and sanctions in case the
employee has not observed company
policies

13

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

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 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 authorization by the
Works Council Labour Office
15

PROS CONS

-Gives the employer the possibility to
lawfully use remote monitoring
devices -Interference of the Works Council in
the employer’s internal organisation

- The collected evidences can be
used against the misconduct of the - Risk of a denied authorization from
employee the Works Council or Labour Office

16

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

… 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

… 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

Actions for the Employer to
Manage the Risk

20

How can the Employer Manage the
Risk?

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

1. difensive
2. remote
3. human

21

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

Committment of Offence of corporate assets: unlawful
criminal offences use of company’s goods
in the workplace

22

PROS CONS

-Necessary to judge and evaluate post-
conduct history
Pre-authorisation is not necessary
from the Works Council or Labour - It is not excluded the applicability of
Office Section 4 of the Workers’ Bill in all
those cases where the defensive
monitoring refers to the employees
activity

23

2. Remote Monitoring

Definition 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

Electronic Devices Available for the
Employer
- Badge
- PC
- Telephone
- Camera
- E-mail
- Internet
- Biometric data
- RFID
- GPS
- Remote training

25

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 employee

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

26

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

………………… 27

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

28

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.
….…………

29

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 No
To the extent that it is not • Recording of complete
extended to the content of the telephone number
phone call and it is limited to • Possibility to input during the
the monitoring of the last digit call
of the called number and its • Recording of the call with
duration some exceptions

31

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

……………

32

Also the employee can controll the employer

How?

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

33

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 by
persons who take part to the a third party or if part of the
conversation conversation is a third party, it
must be authorized
- Its content can be disclosed
only 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

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

…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

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

…………………

37

E-mail
name@company.it
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

Absent
employee

38

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

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
……………

40

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

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 the
employee

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

42

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

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

44

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
………………

45

3. “Human” 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

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

Investigative Activity

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

Permitted:

Outside the workplace Even if measured covertly

47

“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

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

……………
49

Personal Monitoring of Employee

Article 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

… 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

51

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

52

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.

53

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

54

The New Frontier of Monitoring

55

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

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 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.

57

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

58

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

… In case of Breach of Duties:

Employer can start a
disciplinary proceedings The Court will evaluate
if the sanction applied
Sanctions: provided by by the employer to the
the Bargaining employee is
Agreement. The proportional to the
maximum sanction is the misconduct
dismissal

60

If the employer collects the evidence
unlawfully

Sanction:
Processual Criminal
the collected evidences fine from € 154 up to €
can not be used against 1,549 and in critical cases
sanction the employee imprisonement up to one
year

61

Rome 2012 Conference Monitoring Of The Employees

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