Employers can search your personal phone

Employers are not allowed to search data marked as "private"

If an employer gives his employee a service computer, not only business, but also private data is often processed and stored there. If entrepreneurs want to search the data on this computer for reasons of labor law, the question arises whether this is even permissible.

Employee documents his own fuel fraud

The Federal Labor Court (BAG) recently had to decide on exactly this question. During the search of a company computer, the company's internal auditors noticed a file, the content of which suggested a fuel fraud by an employee. The employer saw it as proven that the employee concerned let third parties refuel with the company's own fuel card and terminated this. The employee then took his dismissal to court.

Was the recovery compatible with data protection?

The file searched was not in a business context. The dismissed therefore took the view that his employer was not allowed to search or use this data, because the knowledge gained from it was not in accordance with the privacy. According to Section 26 (1) sentence 2 BDSG (Federal Data Protection Act), personal data of the employee may only be used to detect criminal offenses if there is justified suspicion. At the time of the search, however, it did not pass.

Without "private" labeling, there are no legitimate interests in privacy

However, the plaintiff did not mark the file as "private". The BAG ruled that data that is not marked as "private" or recognizable as such can be searched by the employer without suspicion of a criminal offense.

According to Section 26 Paragraph 1 Clause 1 BDSG, however, the prerequisite is that the data collection is necessary and not an unreasonable burden for the employee. The employee has a legitimate expectation of privacy that must be taken into account. Because the employee cannot expect that the employer will not search through data on company computers during a justified routine check of the contractual loyalty of his employees, if these are not recognizable as "private".

Employees should mark private data as private

Conversely, the judgment of the BAG means that employees can prevent the legality of a search without a qualified reason by clearly indicating the privacy of data on the service computer. For this purpose, files can either be marked as "private" or moved to a private area of ​​the computer. If the employee has not done so, however, he must reasonably expect a search.

In addition, it can be assumed that the principles presented here also apply to searches of the e-mail inbox by the employer.

Advice for companies in employee data protection

Ultimately, however, the employer must also comply with data protection regulations when handling the data of his employees. For employers, the judgment shows that it is always advisable to strictly separate professional and private data in the business environment or to clearly identify data of a private nature. Our are happy to advise Employee data protection lawyers The right data protection concept.

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Our advice on employee data protection

Olga Stepanova

Lawyer Olga Stepanova works for WINHELLER in the areas of IT law and data protection. Our commercial clients also advise you on trademark, copyright and competition law.

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