Can an employer check their employees' telephones?

Monitoring in the home office: what the boss is allowed to do and what is not allowed

To protect against the coronavirus, many work from home. The employer thus loses part of his control over his employees.

Whether spying software, checking e-mails or even a private detective: There are a multitude of theoretical options for monitoring employees.

However, monitoring is usually only legally permissible if there is a specific reason, such as a serious breach of duty.

The corona pandemic ushered in the era of the home office. Many now work from their desks at home. You can only come to the office on selected days. The boss loses part of the control over his employees. Many a supervisor worries whether his team is working just as hard at home and is not secretly vacuuming the bedroom.

Spy software, checking emails, private investigators: the list of theoretical ways to monitor employees is long. So-called keyloggers or monitoring tools such as Activtrak, Timedoctor or Hubstaff from the USA are enjoying increasing popularity.

They record mouse movements and keystrokes, control surfing behavior or have GPS tracking. As the Handelsblatt reports, there are also buyers from Germany and Europe for this type of sniffing software. The inquiries have tripled since March.

Continuous surveillance is prohibited

In contrast to the USA, the employer's rights are very limited in Germany. "Any type of monitoring must be in compliance with data protection regulations," says Nathalie Oberthür, specialist lawyer for labor law in an interview with Business Insider. That said, your boss needs a valid purpose if he is to control you. This is the case, for example, if there is a specific suspicion of a serious breach of duty or if the employer wants to check randomly whether his employees also use their service devices privately.

“The necessity and appropriateness of the control must be aligned with this purpose, especially taking into account the intensity of the interference,” explains the labor law expert. That means, for example: no control in private areas - and a time limit for monitoring. "Permanent monitoring is generally prohibited."

However, the employer must check whether the employee in the home office adheres to the data protection and occupational safety requirements. For example, service devices must be protected against access by third parties.

However, on-site control is difficult. Because, according to Obertühr, you do not have to let your boss into your apartment at any time if there is no corresponding agreement. In order to check the requirements anyway, your employer can, for example, have photos of your workplace shown, explains the expert.

Systems for recording working hours are allowed

Our employment contract regulates how long and at what times we have to work. This agreement also applies to the home office. When working from home, the regulations on maximum working hours, rest breaks and rest times as well as the ban on Sundays and public holidays must be observed.

Your boss can request that the hours worked at home are regularly recorded and presented. He can also check this with a system for recording working hours. A very simple method is to evaluate the employee's log-in data. In this way, the boss can see when we have logged into and out of the company network.

How much the employer gets if he only checks the log-in times is another question. The data does not tell whether the employee actually worked or whether he simply surfed the Internet privately.

To be more precise, there is spy software. However, this is only allowed if there is a concrete suspicion of a criminal offense or a serious breach of duty. Even if the employer announces in advance that such a program will be installed on the work equipment of his employees, this is not legal. "The disclosure makes impermissible monitoring not permissible," says Oberthür.

Emails can be checked for specific reasons

In order to check whether service devices are also being used privately or if there is a specific reason, the boss may, however, check historical data and e-mails on a random basis. In 2016, the Berlin-Brandenburg Labor Court ruled in favor of an employer who had given an employee notice after it was discovered that he had surfed the Internet privately during working hours without permission.

For example, if there is a suspicion that someone is secretly doing a part-time job during their actual working hours, the employer is also allowed to read the employee's e-mails. However, the principles of proportionality must also be observed here.

If the private use of service devices is permitted, the legal situation will change. Because then the stricter rules of the Telecommunications Act also apply.

Similar to the use of spyware, a private detective may only be hired if there is an urgent suspicion against an employee. "Unprovoked surveillance is not permitted," says Oberthür. The employer is also not allowed to secretly observe you via the webcam in the computer or create a movement profile on your company cell phone.

Warning if work has not been done

If you have your working hours paid and watch TV, do the house cleaning or spend hours surfing the Internet, you are violating the duty stipulated in the employment contract. According to Nathalie Oberthür, the boss can issue a warning for this. "In serious cases, there is a risk of dismissal," says the labor law expert. In addition, your boss can deduct the hours not worked from your salary.