GDPR – Data Processing in the Context of Employment
What do I have to pay attention to as an employee/employer?
Today we want to address the question of what the GDPR actually means for HR professionals: The new provisions of the GDPR and the new German Data Protection Act primarily affect company agreements and employment contracts in the area of HR. The processing of employee data is only permissible if a law, in our case the GDPR or the new German Data Protection Act, allows it or the employee consents. More detailed information on this can be found in § 26 German Data Protection Act-new. Personal data of employees may be processed for purposes of the employment relationship if this is necessary for the decision on the establishment of an employment relationship or, after the establishment of the employment relationship, for its implementation or termination.
What applies to collective agreements or works agreements?
This is regulated for the first time in Section 26 (4) German Data Protection Act-new/Art. 88 (1) GDPR. The GDPR imposes special requirements in terms of content. These include the requirement to agree on appropriate measures to safeguard the human dignity, legitimate interests and fundamental rights of the data subject, in particular with regard to the transparency of processing, the transfer of personal data within a group and monitoring systems at the workplace.
What changes are to be observed in employment contracts? In future, it is advisable to conclude declarations of consent under data protection law and employment contracts separately from each other in a separate document. This way, you can be sure that the existence of the employment contract is not linked to the granting of consent for the data protection declaration of consent and that voluntariness is guaranteed.
What else must be observed with regard to consent in the employment relationship?
Section 26(2) contains a new provision on consent in the employment relationship. This clarifies that employers can in principle give effective consent. However, it should be noted that the assessment of the voluntariness of consent must take into account, in particular, the dependence of the employed person in the employment relationship as well as the circumstances under which the consent was given. Here, a precise examination and documentation are recommended before consent is obtained in the employment relationship, as it is still legally disputed whether employees can consent voluntarily at all or whether the pressure in the employment relationship is too high.