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EU Employee Monitoring: EU Balancing Test

Wednesday, September 27, 2017   (0 Comments)
Posted by: Mary Mack
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EU Employee Monitoring: EU Balancing Test

Orrick reports on a binding precedent for EU members allowing monitoring of electronic communications with appropriate notice, and under particular circumstances.  The decision should have HR, legal departments and IT generating new employee handbook/notices, especially due to the pending GDPR.  

The factors according to the Orrick Trust Anchor include:

  • previous notification of employee of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures
  • extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy
  • legitimate reasons to justify monitoring of the communications and accessing their actual content
  • possibility to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications
  • consequences of the monitoring for the employee subjected to it
  • adequate safeguards against abuse by the employer

While the case presented did not meet the test due to inadequate notice and other factors, there is a clear black letter path to follow.

Grand Chamber of the European Court of Human Rights (ECHR), Bărbulescu v. Romania(application no. 61496/08)

Read the full article here

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