Employment Law and Data Protection in Germany A walk in the park? Verena Braeckeler Sascha Kuhn London, 3 May 2012
Interviews and pre-employment background screening
Advertisements I Exact job requirements should be specified A job advert may not be discriminatory with regard to race and ethnicity, gender, religion or world view, disability, age or sexual identity. Avoid words that could indicate relevance of prohibited criterion Young and dynamic team who speak German as native language
Advertisements II Grounds for discrimination? "good command of German" "dynamic, flexible, mobile" "at least 5 years work experience" "0 to 3 years work experience" When using third parties (eg a headhunter) discriminatory recruitment will be ascribed to client.
Application documents German employers usually expect extensive set of application documents. Documents usually submitted: Covering letter CV Photocopies of school and university reports as well as Reference letters. Necessary information on previous employment relationships can be gathered from reference letters. German reference letters usually phrased in a code language. This will usually require reading between the lines.
Interviews I Ideally more than one interviewer on employer s side When inviting candidates to interview special care to be taken where potential grounds for discrimination exist Invite if any doubts exist or document lack of objective suitability well General principle: employer has right to ask questions Though: not every personal question is permissible Personal questions need to respect the applicant s personal rights to relate to circumstances of position or to relate to applicant s career, relevant work experience, existing restrictions such as for example, non-compete covenants.
Interviews II Applicant may answer inadmissible questions untruthfully or incomplete Employer will not have a right to contest an employment contract entered into on the basis of such untruthful or incomplete answers Untruthful answers to admissible questions may give employer an extraordinary termination right Questionnaires used in recruitment process require prior consent of works council (if any) and restrictions in relation to admissible questions must be observed
Interviews III Examples of questions which are not allowed marriage plans sexual orientation illnesses and disabilities (which are not relevant to position) pregnancy criminal convictions which are not relevant to position (e.g. a bookkeeper could be asked to disclose any convictions for fraud or similar crimes but not for assault) religious denomination trade union or party membership
Assessment Centre (AC) I AC consists of elements such as interviews, tests business simulations etc. Candidates not obliged to participate in AC Though: in practice candidates will rarely refuse
Assessment Centre (AC) II Elements of AC must be designed non-discriminatory as regards race and ethnicity gender religion or world view disability age or sexual identity Use and design of AC subject to work council s (if any) participation rights.
Background screening - General Types of background screening: Credit checks Internet research Official certificate of good conduct (polizeiliches Führungszeugnis) Potential new employer should not contact applicant s previous or current employer without express authorisation Applicant might otherwise be entitled to claim damages Recommendation Make successful completion of background check condition precedent for commencement of employment relationship Carry out screening as early as possible prior to beginning of employment
Background screening Credit Checks Credit checks quite common elsewhere In Germany: Potential new employer cannot request consumer credit report Employee can be asked for information on their financial situation if position involves particular trust Candidate can voluntarily obtain a credit report and forward it to potential employer
Background screening Certificates of good conduct General principle: Employer only allowed to ask for criminal convictions if of objective relevance for position Official certificates of good conduct set out all convictions including those irrelevant for employment Official certificates of good conduct can only be requested if position involves special security needs Not all convictions recorded are necessarily relevant for potential employer
Background screening Internet Research I Internet research re candidate s background not explicitly prohibited General principle under data protection law: Personal data only to be collected if required for conclusion/execution of employment relationship Employer needs to collect background information directly from candidate by asking question Involvement of third parties only permissible as an exception provided that employer s legitimate interests prevail; moreover: employee to be informed that third party will run background check Research findings (re: eg religion or sexual orientation) not be used in a discriminatory way
Background screening Internet Research II Restrictions under data protection law apply Candidates to be informed in advance that internet research will take place Internet research restricted to sources publicly available (such as Google) Social networks Not publicly available and often used privately facebook etc. should not be reviewed Though: professional networks such as Xing and LinkedIN may be checked
Medical examination I Examples: Psychological Blood Genetic tests and Drug screening Medical examination only admissible if applicant s consent was obtained Physician only able to inform employer whether applicant is fit/unfit to work Specific diagnosis can only be communicated if applicant has explicitly waived right to medical confidentiality
Medical examination II Psychological tests Permissible if appropriately designed in relation to position Comprehensive analysis of personality impermissible Only characteristics and features relevant for position to be tested to be carried out by a professional psychologist and candidates to be informed in advance about design and purpose of test Blood tests Require special legitimate interest of potential employer Such interest must relate to position (for instance avoidance of infection in hospitals or food production)
Medical examination III Genetic tests In principle prohibited by statutory law. Employees must not be treated disadvantageous if they refuse genetic tests Otherwise: entitlement to immaterial damages (Rare) exception: test aimed at excluding that employee s genetic predisposition may result in severe illness caused by circumstances of specific work place Drug screening Only permissible if drug addiction will in fact cause danger at work (this is the case as far as eg surgeons or pilots are concerned) If permissible, employee s consent required for screening If permissible, successful completion should be made condition precedent for commencement of employment relationship
Graphologic Analysis Infringes the candidate s right of personality Therefore: prior consent to be obtained If obtained: comprehensive analysis of personality inadmissible Analysis to be limited to aspects of personality relevant for position
Rejections Letter of rejection should be kept neutral and free of meaningful content Make sure you have proof of receipt of rejection When rejecting an application: Keep copy of application documents Discrimination claims must be made within two months from having received a rejection Thus: documentation required to defend against such claim Unlawful actions by employer in the course of recruitment do not result in entitlement to be hired Though: rejected candidates might claim damages
Interception of Employee Communication
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany I. Necessity of legal basis for authorisation Legal authorisation generally required Para. 4 sec. 1 Federal Data Protection Act (BDSG) Concerns processing of data from both private and business e-mails Applicable regardless of whether a private use of the e-mail system and the internet is allowed or restricted German Telemedia Act (TKG) or BDSG applicable? Both applicable when the place of business establishment is within German borders TKG applicable when private e-mail and internet use is prohibited by the employer BDSG applicable if no general restrictions exist
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany II. Legitimacy of data processing if private use is not explicitly prohibited General secrecy of telecommunications is regulated in para. 88 TKG Employer under there regulations is a service provider The provider cannot monitor e-mail content or any other relevant details (esp. participants) of the communication process for any other purposes other than for technical security protection The protection under these regulations ends with deleting the e-mail from server An explicit consent from the employee cannot grant justification regarding e-mail monitoring, but is suitable to justify internet use monitoring A breach of the regulations is a criminal offence pursuant to para. 206 sec. 1 German Criminal Act (StGB)
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany III. Legitimacy of data processing if private use is explicitly prohibited In cases where data observation concerns employment issues sec. 32 para. 1 sent. 1 is applicable E-mails General screening of e-mail contents and outgoing data packets is restricted Keyword search for business-related terms is permitted Internet Employer may block access to some websites Random sample based keyword checks whether restricted or risky content is being viewed are allowed Obtained information cannot be put on record or evaluated
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany IV. Other regulations under BDSG-E (has not yet entered into force) Changes only regarding the prohibited private use of telecommunication services Regulations during the use of the telecommunication service Constant data screening not admissible Only random sample keyword checks (term not yet defined by jurisdiction) Employees must be informed about the control in written form Regulations of data evaluation after use of the telecommunication service Apply after e-mail has been sent or after disconnecting from internet Employees must be informed about the control in written form Only if necessary regarding employment relationships No justification for illegal data processing through consent of employees possible
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany V. Cross-border data transmission among EU/EEA countries Generally allowed under para. 32 and 4 b BDSG A separate data processing agreement is required among the companies If private use of e-mail and internet is granted, no data transmission can take place pursuant to para. 92 TKG
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany VI. Legal consequence Criminal consequences Breach of TKG regulations is a criminal offence pursuant to para. 206 StGB punished with up to five years imprisonment or fine Breach of regulations of BDSG can be fined with up to EUR 300,000 or a two year imprisonment under the regulations of the BDSG. Further to a criminal assault can also be assumed under para. 201 following StGB Damage claims Damage claims may arise under the regulations of German Civil Act (BGB) if general rights of person are infringed
Session 2: Lawful interception of employee telecommunication The legitimacy of personal data processing in Germany VII. Risks of inadmissible evidence The question of evidence admissibility of illegally or accidently obtained data is not particularly clear Data obtained if a general private use of e-mail and internet is explicitly prohibited is undoubtedly admissible evidence
Screening of e-mail and internet traffic Can employer base formal warning/dismissal on findings impermissibly obtained? Findings banned as evidence if employer violated employee s right of personality (eg. by reading a private e-mail to spouse) Findings (eg. for bribery) taken from business e-mails likely permissible evidence
Legal basis for private electronic communication I Employees not automatically entitled to use employer s communication systems privately In practice: employers often tolerate private electronic communication without regulating it Having a legal basis is advisable Possible legal basis Employment contract Works agreement (if there is a works council) Policy (if there is no works council) Principle of company practice (betriebliche Übung) not applicable Mere toleration of private electronic communication does not create entitlement for future
Legal basis for private electronic communication II Changes to legal basis (eg. limiting private electronic communication) Employment contract: In principle: employee s consent required; Otherwise notice of termination with offer of employment on altered conditions (Änderungskündigung) to be given (subject to statutory restrictions). Works agreement: Works council s consent required for amendments If terminated: works agreement might continue to apply until replaced by follow-up agreement Policy: may be altered unilaterally (work instructions) As mere toleration does not create an entitlement, changes possible
Questions? Verena Braeckeler Partner, Employment Simmons & Simmons LLP DD +49 211 470-53 39 M +49 151 5276 40 05 verena.braeckeler@ simmons-simmons.com Sascha Kuhn Partner, Litigation & Compliance Simmons & Simmons LLP DD +49 211 470-53 79 M +49 151 5276 4024 sascha.kuhn@ simmons-simmons.com simmons-simmons.com elexica.com