Monitoring (within the meaning of Art. 22(2) § 1 of the Labor Code) constitutes special supervision of the workplace or the area surrounding the workplace using technical means enabling image recording. Importantly, however, this definition does not cover audio recording, only the image itself. According to the Personal Data Protection Office's position expressed in its guidelines on video monitoring, audio recording could constitute excessive data processing and even constitute grounds for liability under civil, administrative, or even criminal law.
Regardless of the above, monitoring cannot be used in rooms such as sanitary facilities, locker rooms, canteens, or smoking rooms, as well as rooms made available, for example, to a company trade union. Exceptionally, however, these rooms may be monitored if its use is necessary to achieve the purpose specified in Article 22(2) § 1 of the Labor Code, and does not violate the dignity or other personal rights of the employee, in particular through the use of techniques that prevent the recognition of individuals in these rooms (monitoring of sanitary facilities requires prior consent from the company trade union, and if the employer does not have a company trade union, prior consent from employee representatives elected in accordance with the procedures adopted by the employer).
Types of monitoring
Importantly, these regulations, pursuant to Article 22(3) of the Labor Code, apply not only to traditional monitoring of premises but also to email monitoring, GPS monitoring (e.g., in a company car), or monitoring of the internet, for example. However, an employer may implement employee email monitoring if it is necessary to ensure work organization that allows for the full utilization of working time and the proper use of work tools provided to the employee. However, even such monitoring must not violate the confidentiality of correspondence or other personal rights of the employee. The provisions on email monitoring apply accordingly to other forms of monitoring (e.g., internet networks or GPS logs).
Pursuant to Article 22(2) § 3 of the Labor Code, video recordings may be processed only for the purposes for which they were collected and stored for a period not exceeding three months from the date of recording. However, if the video recordings constitute evidence in legal proceedings or the employer becomes aware that they may constitute evidence in the proceedings, this period is extended until the final conclusion of the proceedings. However, after the above periods have elapsed, video recordings containing personal data obtained through monitoring should be destroyed.
The objectives, scope and method of application of monitoring should be established in the collective agreement or in the work regulations or in a notice if the employer is not covered by a collective agreement or is not obliged to establish work regulations.
The employer must inform employees about the introduction of monitoring, in accordance with the manner adopted by the employer, but no later than 2 weeks before its launch.
This alert is for informational purposes only and does not constitute legal advice.
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