Currently, the protection of the employee's personal rights enshrined in Act No. 262/2006 Coll., the Labor Code, as amended, is somewhat toothless. Although the Labor Code regulates the employer's obligations in this area, there are no rules for punishing an employer who violates these rules to effectively protect employees. Although the labor inspectorate can control the employer and its approach to the employee's personal rights, if it discovers a violation of the obligations regulated in Section 316, paragraphs 2 to 4 of the Labor Code, it cannot impose any sanction on the employer (it can at most impose corrective measures).

In practice, therefore, the labor inspectorate usually forwards its findings to the Office for the Protection of Personal Data, which, however, only deals with violations of obligations in the area of ​​personal data processing. As far as the protection of employees' privacy is concerned, the Office for the Protection of Personal Data intervened and sanctioned the employer only if there was a violation of Act No. 101/2000 Coll., on the protection of personal data and the amendment of some laws. Specifically, this office imposed fines if there was illegal monitoring of employees by a surveillance device with recording technology (online transmission is not enough) or in connection with the monitoring of electronic mail (systematic monitoring of electronic mail and subsequent processing of data obtained from it), if it occurred at the same time to the violation of obligations in the processing of personal data.

This legislative state has been criticized for a long time and finally prompted the Public Defender of Rights to recommend in his summary annual report on the activities of the Chamber of Deputies to request the government to amend Act No. 251/2005 Coll., on labor inspection, by which a new an administrative offense and a misdemeanor punishing the employer's unauthorized interference with the employee's privacy. At the 23rd meeting of the Chamber of Deputies on 4 December 12, Minister of Government Jiří Dienstbier expressed his agreement with the request of the Public Defender of Rights and stated that the date when the draft amendment will be submitted to the government by the Ministry of Labor and Social Affairs is set for April 2014.

The Ministry of Labor and Social Affairs subsequently drafted a bill which, among other things, should supplement the Labor Inspection Act with new factual elements of misdemeanors and administrative offenses in the area of ​​privacy protection and personal rights of employees.

Protected employee rights

Privacy protection, or personal rights of employees is divided into 316 groups of rights and the corresponding obligations of the employer in the provisions of § 3 of the Labor Code. As mentioned above, although the labor inspectorate can control the employer's violation of these obligations, it cannot impose a sanction if it detects a violation.

1. Prohibition of monitoring, eavesdropping, recording and inspection of mail

The employer may not, without a serious reason based on the special nature of his activity, violate the privacy of the employee at the workplace and in the common areas of the employer by subjecting the employee to open or covert monitoring, listening and recording of his telephone calls, checking electronic mail or checking letters addressed to the employee.

Unless there is a serious reason based on the special nature of the employer's activity, the employer may not subject the employee to the aforementioned interventions at all. Of course, determining which reason is serious enough can be problematic. However, expert practice already more or less agrees that it is not only particularly dangerous or extremely threatening operations (such as a nuclear power plant). Every employer has the right to protect his property and its use by employees only for work purposes. At the same time, the employer has an obligation to protect the health of employees and other persons staying at the workplace. However, monitoring of employees should be seen as the last means that the employer can resort to for the stated purpose. Therefore, in most cases, the reason for monitoring cannot be to check the work performance of employees, because this is intended for senior employees at various levels of management, who have the duty to check the work of their subordinate employees.

In most cases, the monitoring of e-mail is motivated by the employer's interest in controlling the use of working time by employees and the way in which the employer's property is used by employees. The Office for Personal Data Protection has commented many times on the compliance or contradiction of various forms of checking employees' e-mail from the point of view of personal data processing. It is a question of how, in the event of the approval of the amendment to the Labor Inspection Act, the control authorities will approach the interpretation of "serious reasons" in relation to the monitoring of employees' e-mails. The same, of course, applies to wiretapping or even recordings of telephone calls or checking of mail.

2. Obligation to inform employees about control mechanisms

If the employer has a serious reason based on the special nature of its activity, which justifies the introduction of the otherwise prohibited control mechanisms listed above, the employer is obliged to directly inform the employee about the scope of the control and the methods of its implementation.

The method and extent of informing employees should not be underestimated by the employer. In any case, the information should be in writing (provable for the purposes of possible control) and sufficiently specific (e.g. information about the camera system should definitely contain information on whether a recording is being made and where the cameras are located).

3. Prohibition of requesting information unrelated to work performance

The employer may not demand from the employee information that is not directly related to the performance of work and the employment relationship or a relationship based on an agreement outside the employment relationship. It must not require information in particular about
a) pregnancy,
b) family and property conditions,
c) sexual orientation,
d) origin,
e) membership in a trade union,
f) membership in political parties or movements,
g) belonging to a church or religious society,
h) criminal integrity;

If there is a factual reason based on the nature of the work to be performed, the employer may request information about pregnancy (in the case of work prohibited for pregnant women), about family and property circumstances and about criminal integrity, i.e. the information listed under letter a), b) ah). However, the request for such information must be reasonable in the given specific case, or it must be a situation where the law provides for it.

In the case of prohibited questions, the employer may not obtain this information even through third parties.

The list of information that employers may not request is only demonstrative. Thus, employers can violate the provisions of § 316, paragraph 4 of the Labor Code by asking about information not listed. A typical problem may be questions regarding the health status of employees (eg the question of whether the employee is HIV positive). Although the employer has an obligation not to allow the employee to perform work, the difficulty of which would not correspond to his medical capacity, he must not forget that the medical capacity is assessed by a doctor as part of occupational medical care, the result of which is a report to the employer on whether or not the employee is medically fit to a specific job, without the employer knowing the specific diagnosis that the doctor found. Of course, even the issue of health needs to be assessed individually in relation to individual jobs and workplaces (there will be a difference between an office and an operating theatre).

Bill submitted pursues the goal of enabling the labor inspection to sanction violations of these 3 groups of employer obligations with a fine:
a) a fine of up to CZK 1 is proposed for violation of the prohibitions listed in items 3 and 1;
b) a fine of up to CZK 100 is proposed for violation of the information obligation;

while the amount of the maximum limit of fines is proposed to be the same both for employers - natural persons and for employers - legal entities.

The draft of this law is currently in the phase of completed comments. It is therefore, of course, a question in what form (and if at all) it will reach the Chamber of Deputies of the Parliament of the Czech Republic and whether it will finally be approved and become effective. However, there is probably no doubt that its adoption would be desirable. It will be interesting to observe in the administrative, and eventually subsequent judicial, decision-making practice how the interpretation of "serious reasons consisting in the special nature of the employer's activity", which are a condition for the possibility of introducing control mechanisms according to § 316, paragraph 2 of the Labor Code, will be established.

Source: epravo.cz