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Remote monitoring of employees through tablets, smartphones, and other devices used as part of the working activity might be more accessible following the approval of changes to the Italian Workers’ Statute. But the scope of such change might have exciting developments regarding the Internet of Things and wearable technologies devices.
This post was drafted together with my colleague Giulia Zappaterra. I hope you will find it interesting.
The old regime on remote monitoring of employees
Remote monitoring of employees has always been prohibited in Italy since this practice was deemed to restrict employees’ rights. But some flexibility had been identified by courts and by the Italian privacy authority that allowed the so-called “defensive checks”. It is possible to get access to employee data (e.g., emails or Internet browsing) if there is a suspect of illegal conduct.
On this basis, the Italian privacy authority had issued guidelines on the monitoring of employees’ emails and Internet usage. The guidelines pose strict restrictions to the scenarios where such practices could be performed and in any case, require the prior approval of trade unions.
Courts had shown some flexibility in the recent cases and the more recently the Italian privacy authority had also allowed the usage of mobile devices tracking the location of employees. But such practice was still subject to several safeguards outlined in the decision of the privacy authority and to the prior consultation with trade unions.
What changes in remote monitoring of employees
In an attempt by the Government to adopt employment law to technological developments, the Board of Ministries canceled the provision mentioned above of the Workers’ Statute providing that:
- Instruments and devices whose sole purpose is to monitor employees’ working activity are still prohibited;
- Audio-video systems and other devices that can also trigger remote monitoring of employees can be installed only for production and organization purposes with the prior approval of trade unions; and
- Instruments of point 2 that are necessary for the performance of the working activity as well as those aimed at monitoring accesses/exits from the workplace can be installed without the prior approval from trade unions, but adequate prior privacy information notice shall be provided to employees. And the information collected through such devices can also be used as part of disciplinary proceedings.
What are the implications of such change?
The reaction of the public opinion was not consistent. Trade unions deemed such a move to be an excessive restriction of employees’ rights. On the contrary, the industry appreciated the change justifying it as a “natural” consequence of technological development.
In our view, the “tricky” element of the provision is the qualification of what devices are deemed necessary for the performance of the working activity. Smartphones, tablets are similar devices can track employees’ location. But what about wearable technologies and, in general terms, Internet of Things devices that need to monitor employees’ health conditions and/or behavior to ensure that they can perform the working activity for instance in case of dangerous jobs?
Is the new provision introducing a blanket exemption that will broaden with the technological development?
And the reaction of the privacy authority?
The privacy authority did not comment on such regulatory change, but the question is whether the new provision
- either prevents them from imposing further data protection law restrictions to employees’ monitoring as it refers only to the provision of a privacy information notice,
- or the change only waived the need to obtain in some circumstances the approval from trade unions.
It is unlikely that the privacy authority will not take a position on the matter, but for the time being “Big Brother” fans might face still some troubles…
