TL;DR for the DPO
Three cumulative conditions: justification and proportionality, consultation of staff representative bodies, prior information. If one is missing, the tool is unlawful even if the other two are perfect. And the employer must be able to PROVE the analysis was done: to an authority, an unwritten analysis was never done.
The power to monitor exists, but it is not unlimited
The CNIL starts by recognising managerial power: the employer must check that tasks are properly performed and ensure the safety of the property and people in its charge. The tools may concern work equipment (phone, computer, company car), access to premises and time recording, and workplace CCTV. But that power cannot be exercised excessively.
The reference is Article L.1121-1 of the French labour code: no one may impose restrictions on individual rights that are not justified by the nature of the task to be performed nor proportionate to the aim pursued. From this principle the French supreme court has held, since 2001, that employees are entitled to respect for their private life even during working time and at the workplace.
The two conditions that actually sink the tools
This is where employers fall
The discussion is almost always about proportionality. But the CNIL lists three CUMULATIVE conditions, and the other two are procedural: prior consultation of staff representative bodies - the works council in private firms with 50 or more employees, the social committee in public bodies - and prior information of the individuals. The CNIL's example is blunt: installing a time clock or a CCTV system without first consulting the works council, in a firm with 50 or more employees, is unlawful. Full stop. No amount of proportionality saves it.
What proportionate means, with the examples
The CNIL gives a method, not a formula: define the purpose and scope of the monitoring clearly, identify the risks to people's rights, check no less intrusive means exists, and establish which data is strictly necessary, how long it is kept and who can access it.
- Constant surveillance is generally excessive. With one instructive exception: permanent geolocation of an emergency vehicle is proportionate, because it does not serve to monitor the worker but to send the nearest crew to the scene.
- A keylogger on someone working remotely is disproportionate: it cannot separate professional from personal information and places the person under constant surveillance.
- Software that counts and reports to the manager, transparently, the number of files handled per quarter appears proportionate: the reporting frequency is not equivalent to constant surveillance, and longer periods are more representative of the work done.
- A tool introduced for one purpose must not pursue another, hidden one: vehicle geolocation to optimise rounds cannot be used covertly to check driving speed in real time.
The burden of proof
The most useful passage is the last. The CNIL writes that the employer must be able to prove compliance with these conditions, and specifies what: the steps of the necessity and proportionality analysis, the life cycle of the data processed, the measures taken for information and for the exercise of rights. And it adds a practical reason worth more than compliance itself: documenting makes it easy to reassess the situation when something changes.
What to do now, in practice
1) For every monitoring tool at your clients, ask for three things: the written proportionality analysis, the minutes of the staff consultation, and the text of the notice given. If the second is missing, the tool is unlawful regardless of the rest. 2) Hunt for hidden purposes: take the stated purpose and ask what other uses the system technically allows. That is where the complaints come from. 3) On remote work, check there is no continuous recording: keyloggers, periodic screen capture, minute-by-minute activity tracking. 4) Move productivity metrics to longer periods and make them visible to the person: it is the very example the CNIL treats as proportionate. 5) Put retention periods for recordings and the list of who can access them into the Article 30 register: those are the two entries found empty during inspections.
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