Surveillance in the home office - What is my employer allowed to do?
In the course of the coronavirus pandemic, more and more employees have switched from the office or company to working from home. Current regulations such as the Corona Occupational Health and Safety Ordinance enable many employees to work from home. In political discourse, there is even talk of a general right to work from home or an obligation to work from home.
Agreements between employers and employees are often made at short notice. The employer must comply with various labor law standards relating to data protection, data security, occupational health and safety and working hours. For many employees, the question now arises as to how to ensure that the employee actually spends the prescribed time working from home. It is often unclear to employees what means their employer may use to monitor them in the home office. We have listed the five most important questions and answered them for you.
The most important facts about home office monitoring in our overview:
- Your employer may - under certain conditions - visit you in your home office for an inspection.
- Carefully document your working hours and work results when working from home!
- Employers should provide their employees with equipment for working from home!
- Your employer may monitor your Internet activity and e-mail traffic, but there are limits!
Table of contents:
- Can my employer carry out inspection visits to my home office workplace?
- Do I have to document my working hours when working from home?
- Can my employer monitor my working hours in the home office?
- Should you use your own device or a company laptop / company PC?
- Can my employer prohibit me from using e-mail and the Internet privately while working from home?
1. may my employer carry out inspection visits to the home office workplace?
The employer is often granted a right of access to the home office in labor law agreements. This allows them to view their employee's workplace and assess it in terms of occupational health and safety law. However, such a visit is also subject to various data protection requirements in accordance with Section 26 (7) BDSG (Federal Data Protection Act).
Inspections and visits are therefore only possible to a limited extent. It is therefore important that your employer provides you with comprehensive information on how you can ensure your health and safety when working from home. If you have not made any clear agreements under employment law regarding an inspection visit by your employer and your employer announces a visit that you do not want, please contact us!
2. do I have to document my working hours when working from home?
As an employee, you have a basic legal obligation to record your working hours and provide evidence of your work results. This is a secondary obligation under your employment contract, which is derived from Section 241 (2) BGB. You must comply with this obligation even without an express agreement with your employer.
3. may my employer monitor my working hours in the home office?
Your employer is legally obliged to monitor compliance with your maximum permitted working hours in accordance with the Working Hours Act (ArbZG). They can also make use of their right to issue instructions when working from home and impose fixed working hours for you if it is not reasonable to make your working hours more flexible for your job.
However, it is currently unclear for many employees whether the employer simply has to rely on your information on working hours or whether they are allowed to control your working hours by using IT equipment, for example.
If your employer accesses your workstation in your home office via IT equipment, your employee data protection must be observed. There must always be a legal basis for the collection and processing of personal data (see Sections 26 ff. BDSG, Art. 6 ff. GDPR). Monitoring with technical aids always means an interference with your fundamental right to informational self-determination (see Art. 2 para. 1 in conjunction with Art. 1 para. 1 GG). Such interference is only lawful if the specific interest of the employer outweighs the interests of the employee that are worthy of protection.
In specific cases, we always recommend that you seek expert legal advice. Please contact us!
4. should you use your own device or a company laptop / company PC?
For the employer's control in the home office, it is also of decisive importance whether you use a private device or hardware owned by your employer in the home office.
It is generally advisable, especially from the employer's point of view, to provide employees with company-owned hardware. If a private PC/laptop is used, the employer has significantly fewer opportunities to monitor the employee or track their work. Not only does he not have sufficient control over the client device, he also remains fully responsible for it under data protection law. The Federal Commissioner for Data Protection and Freedom of Information expressly warns against the use of private end devices for the home office and even considers this to be inadmissible.
If you still use private devices as an employee, these should only be used via an externally secured client or a corresponding VPN access. As an employee, you should also ensure that no third parties have access to them and protect your devices from third-party access by using virus programs and passwords.
5. may my employer prohibit me from using e-mail and the Internet privately while working from home?
Your employer is generally not allowed to prohibit private use of a private computer, as this is your property protected by fundamental rights. Interventions to control IT systems are therefore almost always inadmissible and constitute an invasion of your privacy.
If you use company-owned devices, you are often not allowed to use them privately, especially if this is stipulated in an agreement with your employer. Never assume that you are allowed to use your company laptop privately!
If you are prohibited from using your device privately by your employer, evaluations of browser data or your email communication are generally permitted under Section 26 BDSG. According to the regional labor courts, this is also to monitor compliance with the ban on private use (Landesarbeitsgericht (LAG) Berlin-Brandenburg, Urt. v. 14.01.2016. Ref. 5 Sa 657/15; LAG Cologne, judgment of 07.02.2020, Ref. 4 Sa 329/19.).
However, there are also clear limits to the monitoring of your business use of devices. The interception of telephone calls, GPS tracking, video surveillance or the use of targeted monitoring/tracking software such as keyloggers is generally not permitted!
If such a limit has been exceeded in your case, please contact us immediately!
Lawyer for employment law when working from home
Do you have questions about employment law when working from home or need legal support?
Contact the law firm Haas und Kollegen now:
Rudolf-Diesel-Str. 5, 65760 Eschborn near Frankfurt