The outbreak of the Corona pandemic ushered in a new era in the world of work. The home office has been an integral part of working reality in many companies since 2020. For employers, this means that the boss loses some control over the employees and wonders whether the employees are just as diligent at home as they are in the office.
The temptation to use technical tools to monitor employees is great. However, only a few measures for monitoring employees are legally compliant and permitted. Here you can find out what these are and what requirements must be met for more than superficial monitoring by the employer.
Recording of working hours: This is allowed!
Working hours are regulated in the employment contract. The regulations are not suspended in the home office and are binding for the employees. The employer can record the working hours of the employees in the home office to check compliance with the contractual agreements and the legal requirements. For example, they can use an electronic time recording system that documents the presence and absence of employees.
It is common practice to evaluate the log-in data of employees. However, the time of the log-in or log-out says nothing about the work of the person concerned. On the other hand, it is illegal to use spy software. Even if the employer announces this step, this type of monitoring without a reason is not permitted.
Control of email and internet usage
The employer may monitor the email and Internet usage of employees in the home office in order to prevent misuse or endangerment of the company. He is entitled to log, analyze and filter the employees' email traffic and/or browsing behavior. This applies in the event that private use of company devices has been expressly prohibited. If it is permitted by the employer, the legal situation changes. Employers must always prove that the principles of proportionality are upheld. The use of the webcam for monitoring purposes and the creation of movement profiles via the company cell phone are prohibited.
Control of work performance
The employer is entitled to measure the work performance of employees in the home office in order to assess the quality and quantity of work. For this purpose, the number and duration of calls, emails or video conferences that employees make or participate in may be reviewed. Employers may also monitor the number and quality of completed tasks or projects that employees deliver or present. Anyone who does housecleaning, spends hours browsing the Internet or watching television during working hours is in breach of the duties set out in their employment contract and may face a warning or a deduction from their salary.
Monitoring only in case of concrete suspicion
The legislator provides for an exception to the ban on monitoring if the employer has a concrete suspicion of a serious breach of duty by the employee. In this case, too, the employer must prove the proportionality of the measures taken. However, employees are not obliged to receive the boss in their own homes unless there is an agreement to this effect. However, the supervisor may insist that the employee take photos of the workplace and make them available.
Conclusion: There are strict limits to home office monitoring by the employer. The employer must always observe the legal framework conditions arising from the employment contract, data protection law, personal rights and works constitution law. If these framework conditions are disregarded, the employer may be liable for damages or even be prosecuted under criminal law.