German labour law – mid year update

Checking employee personal emails and internet use

Can German employers access employee private emails or check their internet use?

The German Data Protection Agency (DPA) has issued new guidance and there has been a recent German court ruling consistent with the DPA guide.

The DPA guide says:

  • An employer is free to decide whether or not to permit staff personal use of its IT systems.
  • If the employer restricts use of its IT hardware/software to business¬†only, employers can check that staff are obeying the restriction on internet use and can view emails where staff are absent for periods of time.
  • Nevertheless, as there remains a risk of a breach of privacy rules in carrying out the internet use checks, the DPA recommend blocking access to popular personal use websites in any event.
  • In fact, the guide recommends that staff are not allowed to use the employer systems for personal emails. To do so risks putting the employer in the position of a telecommunications service provider which brings in further secrecy rules (not desirable).
  • Instead, the guide recommends allowing staff use of the internet so they can access their private email accounts without using the employer’s email accounts.
  • Where the employer permits use of its IT systems for personal email it can only access and read staff private emails with the clear consent of the employee.
  • Whatever the employer’s policies are on personal use of its IT systems they should be clearly written down, discussed with staff representatives and communicated to staff, including the employer’s policies on monitoring usage.

Equal Pay transparency

New rules under an Equal Pay Act are proposed to deal with the large pay gap between men and women in Germany. These may come into effect later in the year.

The headlines are:

  • Employees and works councils will be entitled to know the salaries of workers in equivalent roles, based on the average salary of a group of at least 5 workers carrying out the same roles;
  • The employee will be entitled to know the criteria and procedure for setting their salaries;
  • Employers must respond for requests for information within one month;
  • Works councils will be able to force employers to carry out a salary comparison review;
  • Companies with more than 500 employees will have to adopt internal procedures for reviewing equal pay.

Using Agencies for Temporary Workers

A new law on temporary workers has been proposed by the Federal cabinet and will go to Parliament this summer. It is likely to come into effect on 1 January, 2017.

The headlines are:

  • A single temporary worker may only work for the same hirer for 18 months, after which they become permanent;
  • Generally, a temporary worker must be on the same pay as a comparable permanent worker in that business, within 9 months of the start of the contract;
  • A worker on strike cannot be replaced by a temporary worker;
  • Copies of the temporary hire contract must be provided to the works council;
  • The number of temporary workers employed must be taken in to account in calculating staff representation/co-determination thresholds.

New Rules on Maternity protection

A new law updating the rules on Maternity protection has been proposed by the Federal cabinet. It is likely to come into effect on 1 January, 2017.

The headlines are:

  • Maternity protection can be extended to school and university students and to personnel with a similar status to employees;
  • Increased protection where the child is disabled;
  • Increased protection when there is a miscarriage after 12 weeks;
  • Working conditions must be adjusted to protect the mother and unborn child.