The Covid-19 pandemic precipitated a lightning quick shift from working on-site to working at home. After nearly two years of the new normal, remote work is not becoming less popular while employees – in contrast to many employers – are not eager to return to their offices. This is contributing to the growing popularity of employing monitoring as a means of controlling how employees do their work. 
 

Monitoring employees under Poland’s Labor Code

In connection with starting to apply GDPR the Polish legislator elected to implement regulations governing the usage of visual monitoring, monitoring of electronic mail and other forms of monitoring in the work place. These regulations materially restrict the employer’s freedom to implement this type of supervision over employees while placing emphasis on protecting personal rights such as the secrecy of correspondence and employee dignity on an equivalent basis to their personal data. 

Monitoring an employee’s electronic mail or other forms of monitoring an employee (except for visual monitoring which is not the subject matter of this article) may be used if this is necessary to organize work in a manner facilitating the full utilization of working time and the proper usage of the work tools made available to employees. Such monitoring cannot violate an employee’s secrecy of correspondence or other personal rights.

The purposes, scope and method of using this type of monitoring are determined in the collective bargaining agreement, the work regulations or in an announcement. Employers advise employees of the implementation of monitoring in the manner used by a given employer at least 2 weeks prior to its launch. Before allowing employees to start working, employers should provide them with written information about the purposes, scope and manner of monitoring. Employers are also obligated to fulfill the information obligation under Articles 12 and 13 of GDPR. 

The introduction of monitoring is therefore very time intensive in practice (especially when agreeing on changes with a trade union organization) and requires the fulfillment of multiple information obligations with sufficient lead time.
 

Other forms of monitoring

Among the other forms of monitoring we can distinguish GPS monitoring, business equipment monitoring and the monitoring of applications to do work. One should remember that monitoring means constant supervision of employees; an ad hoc inspection is therefore not subject to the regulations pertaining to monitoring. 

Employers who use GPS obtain not just information concerning the location of a vehicle but also other information such as an employee’s style of driving. If a tracking device is installed in a vehicle, the employee must be advised of this fact. This information should be placed in a visible spot in the car - within the driver’s field of vision.

Employers who allow employees to use business equipment and electronic mail for their private purposes must reckon with the fact that this has far-reaching consequences for monitoring them. In the course of monitoring employers cannot violate an employee’s secrecy of correspondence or any other personal rights, e.g. the right to privacy or dignity. Allowing employees to use business equipment for private purposes is difficult to reconcile with monitoring. Employers should therefore consider banning the usage of some business equipment for private purposes if they cannot prevent the monitoring of these devices used for private purposes.
 

BYOD – bring your own device

The Covid-19 pandemic has also translated into popularizing work done by employees on their private devices. When they install business software employers also want to have the ability to monitor the work done by employees. Having regard for the limitations imposed by the Polish Labor Code, it is extremely important for monitoring to cover only business content and applications. Monitoring programs should not have access to private files, photos, messages and private applications installed by employees. The monitoring of private devices will be incongruent with the law if it leads to the compilation of data pertaining to an employee’s private and family life. For that reason, employers should not monitor the work done by employees by turning on the camera in a device without the consent and knowledge of those employees.

When enabling employees to do work on their private hardware it is important to establish and introduce methods for safely migrating data between the device and the network with sufficient lead time so that the software installed on private hardware for the purpose of monitoring the activities of employees does not interfere with their privacy when they use the device for personal purposes.
 

Incidental inspection

Incidental inspection has not been regulated in Polish law and the regulations on monitoring are not applicable to it. This does not mean, however, that it can be carried out in a way that is totally arbitrary. First, incidental inspection should be carried out solely in justified instances involving the protection of an employer’s interests, in particular to protect the secrecy of information. This type of inspection cannot involve constantly monitoring the activity of employees – if that is the case, that involves monitoring, not an incidental inspection.

The rules of inspection should be regulated by the employer, and the employee should be aware of it being conducted. Such an inspection cannot violate the secrecy of correspondence, privacy or any other personal rights of employees who should additionally be advised of the rules for processing their personal data in accordance with Articles 12 and 13 of GDPR in the event of conducting such an inspection.