Law regulating employee data protection

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The law regulating employee data protection should supplement the German Federal Data Protection Act with a section on employee data protection . The draft law was passed by the federal government on August 25, 2010 and introduced to the Bundestag, but never passed. At the end of the 17th legislative period , the bill lapsed. The law never went into effect.

The law was intended to fill gaps in applicable law. For this purpose, already existing judicial law should be converted into the form of a law in order to increase legal security for employees and employers. The monitoring of employees should be made more difficult overall.

Legislative process

The need for a legal regulation

In 1984 the data protection officers of the federal and state governments demanded sector-specific statutory provisions on employee data protection for the first time. In 1992 they established principles for an employee data protection law. The trade unions also campaigned for a legal regulation. For example, in 1999 the German Federation of Trade Unions presented key points for a law on employee data protection.

The German Bundestag and the Bundesrat also saw a need for action. The Bundestag passed several resolutions in which it called on the respective federal government to draw up a corresponding bill. The Federal Council agreed with these demands.

In 2000, the federal government led by Gerhard Schröder planned to submit a corresponding law. However, the project was not carried out. Work on the law was stopped.

In 2008/2009 it became known that important German companies such as the food discounter Lidl and Deutsche Bahn had monitored their employees using sometimes illegal methods. The Deutsche Telekom surveillance affair received particular attention . As a result of these incidents, the German government, now led by Angela Merkel, decided in February 2009 to resume work on an employee data protection law.

The Federal Ministry of Labor and Social Affairs then drew up the draft for an Employee Data Protection Act, which Federal Labor Minister Olaf Scholz brought into the discussion in September 2009. In view of the upcoming general election, the draft was no longer approved by the CDU / CSU-SPD federal government.

From the coalition agreement to the draft cabinet

After the change of government in autumn 2009, the CDU / CSU and FDP agreed not to create a separate law on employee data protection , but instead to add a chapter on data protection for employees to the Federal Data Protection Act. The Federal Ministry of the Interior (BMI) is responsible for this legislative proposal . In May 2010, the Federal Ministry of the Interior presented a first draft bill.

The BMI's draft received both criticism and approval. The German Federation of Trade Unions and the United Services Union rejected the planned law because it would not lead to more, but to less data protection for employees. The German Association for Data Protection complained that the draft consists largely of regulations that should legally allow monitoring and research of employees. Control measures, which according to the previous understanding were forbidden, would be legalized by the new regulations. The data protection officers of the federal and state governments also stated that the draft missed the intended goal of a modern and improved protection of employees from surveillance and excessive control. Many questions and problems remained unanswered. As a result, the proposed changes would result in a deterioration in data protection for employees.

In contrast, the industry association BITKOM and the German Chamber of Commerce and Industry (DIHK) welcomed the planned law in principle because it contained "essential approaches", but rejected a number of regulations, particularly in Section 32. The DIHK criticized the fact that the law largely lacks the justified balance between employers and employees. It was also criticized that the draft made no statements about data processing in corporations.

The Federal Ministry of the Interior's draft was also controversial within the governing coalition. From the FDP-led Federal Ministry of Justice it was said that the draft law contained "serious deficiencies" and was therefore being reconsidered.

The Federal Ministry of the Interior then revised the draft law in essential points. Among other things, the regulations on applicant data protection, the control of e-mail traffic and telephony, video surveillance and compliance measures have been specified and tightened. On August 25, 2010, the federal government passed the revised draft law.

The version of the draft law passed by the federal government was criticized by employers and business associations as well as by trade unions. The Confederation of German Employers' Associations stated that the planned regulations would hinder the fight against corruption and crime. In addition, "new legal uncertainty instead of practical clarity" will be created. The German trade association criticized the planned ban on secret video surveillance. The German Federation of Trade Unions, however, feared that the law would make open video surveillance commonplace and described the draft law as "overall not acceptable".

On the other hand, the Federal Data Protection Commissioner, Peter Schaar , stated that it was a “workable compromise” for employees and employers that represented a “substantial improvement” in the handling of employee data.

There was a first reading and an expert hearing by the Interior Committee on the planned law. The parliamentary groups of the SPD, Bündnis90 / Die Grünen and the Left Party submitted alternative drafts and amendments. After the summer break of 2012, a resolution in the Interior Committee and the second and third readings of the law were expected. At the end of September 2012, the law was before the Bundestag for discussion. Between January and February 2013, the law was placed on the agenda of the Interior Committee and the plenary session of the Bundestag several times. Because of violent protests, the coalition waived the vote in the Bundestag in February 2013. Further discussions about the design of the law should be held with all parties involved. Both the opposition, trade unions and the Federal Data Protection Commissioner Peter Schaar welcomed the provisional end of the legislative process, also with regard to the EU data protection reform .

General Data Protection Regulation

The General Data Protection Regulation (EU GDPR) of April 27, 2016 is applicable from May 25, 2018. It does not contain any employee-specific provisions, but enables them due to an opening clause in the individual Member States. On February 1, 2017, the federal government submitted a draft law that also includes data processing for the purposes of the employment relationship.

literature

  • Burkard Göpfert, Elena Wilke: Research by the employer in social networks for the planned Employee Data Protection Act . In: New journal for labor law . No. 23 , 2010, p. 1329-1333 .
  • Marita Körner: Modern data protection for employees. An end to the scandals? Expert opinion on the government draft for regulating employee data protection. Frankfurt am Main 2010. Download. ( Memento from February 21, 2011 in the Internet Archive )
  • Marina Tamm: The latest government draft on employee data protection: Old wine in new bottles or more? In: Die Personalvertretung 2/2011, pp. 47–57.

Web links

Individual evidence

  1. ↑ a b Federal cabinet adopts draft law regulating employee data protection. Federal Ministry of the Interior, August 25, 2010, archived from the original on September 17, 2010 ; Retrieved August 27, 2010 .
  2. ↑ dpa: Data protection: Cabinet makes it difficult to spy on employees. In: Zeit Online. August 25, 2010. Retrieved September 4, 2010 .
  3. ↑ Employee data protection . Conference of the Federal and State Data Protection Officers, March 24, 1992, archived from the original on September 8, 2012 ; Retrieved January 25, 2016 .
  4. ↑ Key points for an employee data protection act. DGB federal executive committee, September 7, 1999, archived from the original on September 14, 2009 ; Retrieved May 11, 2010 .
  5. ↑ Bundestag printed matter 13/7699 of May 16, 1997; Bundestag printed matter 14/4329 of October 13, 2000; Bundestag printed matter 16/4882 of March 28, 2007.
  6. ↑ Federal Council press release of February 13, 2009 ( Memento of July 22, 2012 in the web archive archive.today )
  7. ^ Patrick Pfalzgraf: Employee monitoring . Publishing house Dr. Kovač, Hannover 2003, ISBN 978-3-8300-1099-9 , p. 237 .
  8. ↑ Federal Cabinet adopts a basic regulation on data protection for employees. Federal Ministry of the Interior, February 18, 2009, archived from the original on September 14, 2009 ; Retrieved May 11, 2010 .
  9. ↑ Scholz wants to protect employees better. Federal Ministry of Labor, September 4, 2009, archived from the original on July 1, 2011 ; Retrieved May 23, 2010 .
  10. ↑ Growth, education, solidarity. Coalition agreement between the CDU, CSU and FDP of October 26, 2009. p. 106.
  11. ^ A draft bill for a law regulating employee data protection. (PDF; 118 kB) Federal Ministry of the Interior, May 28, 2010, archived from the original on September 11, 2010 ; Retrieved August 26, 2010 .
  12. ^ Opinion on the ministerial draft of a law regulating employee data protection. (PDF) German Trade Union Confederation, June 15, 2010, accessed on August 26, 2010 .
  13. ↑ Employee data protection : The present draft law is unsuitable. United Services Union, June 16, 2010, accessed August 28, 2010 .
  14. ^ Opinion on the ministerial draft of a law regulating employee data protection. (PDF; 48 kB) German Association for Data Protection, June 18, 2010, archived from the original on September 18, 2013 ; Retrieved January 25, 2016 .
  15. ↑ Strengthen employee data protection instead of reducing it. Conference of the Federal and State Data Protection Officers, June 22, 2010, archived from the original on September 8, 2012 ; Retrieved January 25, 2016 .
  16. ^ Opinion on the ministerial draft of a law regulating employee data protection. (PDF; 201 kB) (No longer available online.) BITKOM, June 18, 2010, formerly in the original ; Retrieved August 26, 2010 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link / www.bitkom.org  
  17. ^ Opinion on the ministerial draft of a law regulating employee data protection. (PDF) German Chamber of Commerce and Industry, June 18, 2010, archived from the original on February 21, 2016 ; Retrieved August 26, 2010 .
  18. ↑ There are still many unanswered questions about the planned law on employee data protection. heise online, July 11, 2010, accessed on August 26, 2010 .
  19. ↑ Data protection dispute divides coalition. Spiegel online, July 3, 2010, accessed August 26, 2010 .
  20. ↑ Data protection: employees as suspects. FR online, August 1, 2010, accessed August 31, 2010 .
  21. ↑ Law is intended to protect employees from spying. Welt online, August 22, 2010, accessed August 27, 2010 .
  22. ↑ Employee data protection must be practical and legally clear. Federal Association of German Employers' Associations, August 25, 2010, accessed on August 27, 2010 .
  23. ↑ Data protection: "Transparent worker" - politics draws boundaries. In: Focus. August 25, 2010, accessed March 2, 2013 .
  24. ↑ Real employee data protection necessary. German Trade Union Confederation, August 25, 2010, accessed August 27, 2010 .
  25. ↑ Schaar: Government draft brings substantial improvements in employee data protection. Federal Commissioner for Data Protection and Freedom of Information, August 25, 2010, archived from the original on July 20, 2012 ; Retrieved January 25, 2016 .
  26. ↑ Controversial data protection law not yet off the table. In: Labor law in the company. Bund Verlag, July 10, 2012, archived from the original on February 10, 2013 ; Retrieved January 25, 2016 .
  27. ↑ Government considers its employee privacy bill to be balanced. In: bundestag.de. September 26, 2012, archived from the original on October 4, 2013 ; Retrieved January 25, 2016 .
  28. ↑ Spy law stopped for the time being. In: Spiegel online. January 29, 2013, accessed March 2, 2013 .
  29. ↑ Stefan Krempl: Black and Yellow stops reform of employee data protection. In: heise online. January 29, 2013, accessed March 2, 2013 .
  30. ^ Nils Christian Haag: EU General Data Protection Regulation and Employee Data Protection March 14, 2016
  31. ↑ Employee data protection ( memento of March 13, 2017 in the Internet Archive ) Website of the Hans Böckler Foundation , accessed on March 13, 2017
  32. ↑ Thilo Weichert : Data protection: What the EU regulation means for employees Website of the Bund-Verlag , accessed on March 13, 2017
  33. ↑ Tim Wybitul: The new employee data protection according to § 26 BDSG - the most important things at a glance February 5, 2017