Employee monitoring in France. January Contents. Legal Framework 1

Transcription

1 Employee monitoring in France January 2010 Contents Legal Framework 1 Principal situations where an individual's privacy is restricted in the workplace 1 Potential disciplinary sanctions applied to employees who do not follow the legally established policies 2

2 Further information If you would like further information on any aspect of Employee monitoring in France, please contact a person mentioned below or the person with whom you usually deal. Contacts France Philippe Thomas T philippe.thomas@lovells.com Jean-Marc Albiol T jean-marc.albiol@lovells.com Italy Vittorio Moresco T vittorio.moresco@lovells.com United Kingdom David Harper T +44 (0) david.harper@lovells.com Elisabeth Slattery T +44 (0) elisabeth.slattery@lovells.com The Netherlands Anita de Jong T anita.dejong@lovells.com Russia Ekaterina Petrova T ekaterina.petrova@lovells.com Spain Luis Enrique de la Villa T luisenrique.delavilla@lovells.com This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice.

3 Contents LEGAL FRAMEWORK PAGE 1 PRINCIPAL SITUATIONS WHERE AN INDIVIDUAL'S PRIVACY IS RESTRICTED IN THE WORKPLACE PAGE 1 POTENTIAL DISCIPLINARY SANCTIONS APPLIED TO EMPLOYEES WHO DO NOT FOLLOW THE LEGALLY ESTABLISHED POLICIES PAGE 2

4 Lovells 1 Employee monitoring in France [The recourse to new information and communication technology has created an additional need for companies to protect their internal information, such as listings, purchase orders, management methods, trade secrets, etc. This protection is ensured in particular by tracing techniques. For the employees, the use of this new technology and tracing techniques means that proof is kept of any action they take. The difficulty and the aim of the legislation on employee monitoring is to combine the protection of companies' internal information with the protection of the employees' individual rights. For this purpose, the applicable legislation is based on three principles - transparency, proportionality and the consultation of employee representatives. LEGAL FRAMEWORK Privacy rights in the workplace are protected by: specific provisions of the French Labour Code, and French law n of 6 January 1978 ( the "Data Protection Act"), the content of which is very similar to the EU Directive n 95/46/CE of 24 October The similarity between the content of this Directive and the French Data Protection Act reduces the potential effects of the failure to transpose this Directive in France to date. Provisions of the French Labour Code The aim of the following articles of the French Labour Code is to ensure that the three principles mentioned above are respected, namely the principles of transparency, proportionality and consultation with employee representatives: transparency is ensured by the obligation under article L of the French Labour Code to inform the employees or candidates, in advance, of (i) the existence of means enabling nominative information to be gathered, (ii) the purpose for such gathering proportionality is guaranteed by article L of the French Labour Code which states that "noone may restrict individual or collective rights if such restriction is not justified by the nature of the task or proportional to the objective sought"; and collective deliberation is ensured by articles L and following and L of the French Labour Code, according to which the works council must be informed and consulted before the implementation of (i) any "new technology which may have an impact on the employment, qualification, remuneration, training or working conditions of the employees" and (ii) any "means or techniques enabling the employees'activity to be monitored". Data Protection Act The Data Protection Act states that "before any nominative information is processed onto a database, a declaration must be made to the Commission Nationale de l'informatique et des Libertés ("CNIL")"(article 16) and specifies that: (i) (ii) "nominative information [ ] is considered to be information in whatever form that enables individuals to whom that information applies to be identified directly or otherwise" (article 4); and "any operation realised by automatic means, relating to the collection, registration, development, amendment, preservation and destruction of nominative information" is known as the database processing of nominative information (article 5). These principles apply to the employer who gathers nominative information on its employees. PRINCIPAL SITUATIONS WHERE AN INDIVIDUAL'S PRIVACY IS RESTRICTED IN THE WORKPLACE Recruitment The CNIL indicates that the information gathered must be directly necessary for the purposes of the recruitment and that any advertisement that does not correspond to an effective vacant position, but is actually intended to build up a database of candidates, is illegal. In addition, the French Labour Code requires that: the candidates be informed of the methods of evaluation to be used before they are implemented, it being specified that these methods must be relevant and that candidates must be given access to the results, which must remain confidential (article L and L of the French Labour Code); and the works council must have been informed of these recruitment methods before they are implemented (article L of the French Labour Code). Management and remuneration of the employees Any database set up for the purpose of the management (in particular, paid holidays, sickness, promotions, etc) and the remuneration of employees must first be declared to the CNIL. Monitoring of the employees (a) Control of access The installation of systems to monitor access or circulation in the company must be justified (for example, for reasons of security, for the management of variable hours or attendance time or for the management of access to company restaurants) and requires a prior declaration to the CNIL.

5 Lovells 2 These measures may under no circumstances lead to an unjustified surveillance of employees or an obstruction to the free circulation of employee representatives. (b) Monitoring of the activity and of productivity (i) Installation of surveillance systems enforceable against employees. The company's use of operating systems which include tracing techniques requires: that the employee representatives be informed and consulted and the employees be notified in advance of (i) the existence of means enabling nominative information to be gathered and (ii) the purpose of this gathering; and as the case may be, a prior declaration to the CNIL. In practice, as a prior declaration to the CNIL is only required when nominative information is processed, tracing techniques are only subject to a prior declaration to the CNIL when they enable an individual to be monitored, as opposed to statistics. In principle, the purpose of tracing techniques is to secure the system and protect confidential information, which can usually be guaranteed by systems which measure the size or frequency of messages or by the storage of exchanged messages and the installation of daily "back-up" systems, without the need for individual monitoring of the employees or users. Any individual monitoring must be justified and proportionate to the desired objective. Although the CNIL recommends that preference be given to statistical monitoring rather than individual monitoring, the individual monitoring of the frequency and the duration of visits to web sites or nonprofessional telephone conversations is allowed, but requires a prior declaration from the CNIL, in addition to obligations of informing employees in advance. (ii) Secrecy of correspondence The principle of the secrecy of correspondence applies to private correspondence received by the employee at the workplace, whether in the form of a letter, s, telephone conversations or voic messages. Therefore, even if an employer has stated that no private correspondence may be received at the workplace, it may under no circumstances be authorised to open any private correspondence. If the employer breaches the secrecy of correspondence (i) it may not use any proof it obtains in this way against the employee and (ii) criminal proceedings may be brought against it, potentially resulting in a fine of up to one year's imprisonment and/or a fine of up to 45,000 Euros. Notwithstanding the above, the network administrators may have access to all information, including information protected by the secrecy of correspondence, when such access is justified by operating requirements and the security of the system. The network administrators are, however, subject to professional secrecy and must not, under any circumstances, carry out checks at the request of their superiors. Employees should be informed of the network administrators' right of access as well as the latter's professional secrecy obligations. POTENTIAL DISCIPLINARY SANCTIONS APPLIED TO EMPLOYEES WHO DO NOT FOLLOW THE LEGALLY ESTABLISHED POLICIES Proof of the fault of an employee that is established by tracing techniques will only be admissible in French courts if: the nominative information obtained in this way has been declared to the CNIL in advance; and/or the employees have been duly informed of the monitoring using tracing techniques; and/or the proof obtained using the tracing techniques is directly related to the purpose for which the tracing techniques were installed and is not the result of a breach of the secrecy of correspondence; and/or the quality of the proof is not questionable (i.e. no manipulation/falsification was possible). Of course, in addition to the lawfulness of the proof, the judge will also decide on the reality and seriousness of the fault. January 2010

6 Lovells LLP and its affiliated businesses have offices in: Alicante Amsterdam Beijing Brussels Budapest* Chicago Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong London Madrid Milan Moscow Munich New York Paris Prague Riyadh* Rome Shanghai Singapore Tokyo Warsaw Zagreb* Lovells is an international legal practice comprising Lovells LLP and its affiliated businesses. Lovells LLP is a limited liability partnership registered in England and Wales with registered number OC Registered office and principal place of business: Atlantic House, Holborn Viaduct, London EC1A 2FG. The word "partner" is used to refer to a member of Lovells LLP, or an employee or consultant with equivalent standing and qualifications. New York State Notice: Attorney Advertising Avocats au Barreau de Paris. Toque No: J033 Copyright Lovells LLP All rights reserved. [n doc DM5) *Associated offices