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The evaluation of employee performance and quality of work is essential for employees in all industries. Deficits can lead to complaints of customers and clients and thus may seriously endanger the success of the business enterprise. Specific issues arise in call centers, where main task of employees is answering calls in order to deal with the customer problems or to create new business. The solicitation of new business through calls initiated by the employee is a main line of business for many companies. Employers in such situation have a valid interest in monitoring and / or recording both the verbal communication between the employees and the customers and to record the details of calls that have been made. Employees on the other hand have a valid interest to protect their personality rights, the same applies to customers who call or are contacted.

In view of German data protection and employment laws three main questions are frequently asked by foreign owned employers.

1. IS IT PERMITTED TO MONITOR THE CALLS THAT ARE MADE BY AN EMPLOYEE EITHER LIVE OR BY RECORDING?

First of all it needs to be mentioned that any way of monitoring telephone calls regularly involves another party, which has no employment relationship with the company. Thus it is clear that any secret action involving another person listening in or recording is not permitted and can even constitute a criminal act. Any third party must have the option to prevent any listening in or recording by the employer after having been informed about the intention to monitor or record the call.

An alternative for the company can be to only monitor the employee’s part on the communication. While this will be possible without any restriction by way of standing next to the employee in person a remote monitoring must be communicated to the employee either generally (e.g. in the employment contract) or in each case (e.g. with the technical signal/ sound, that informs the employee that a specific call is monitored).

A recording of calls (even only the employees part of the communication) requires the explicit prior consent of the employee (Artikel 4d (5) German Data Protection Act) (BDSG).

It is advisable to have a respective clause in the employment contract (or any attachment hereto) as German Labour Courts see a declaration of consent during an already existing employment relationship as extremely critical.

A secret monitoring or recording of calls is only permitted in exceptional cases e.g. when there is evidence of a criminal act (e.g. bribery, trade secrets violation etc.) against a specific employee and it is essential to gain further (final) proof by a way of monitoring / recording a call (and there is no other way to gain such evidence).

Another restriction follows from the interpretation of employees’ personality rights as done by the German Federal Labour Court. According to decisions of the Federal Labour Court a constant monitoring of employee performance is not allowed whether directly or indirectly. Thus any monitoring or recording done in a way that allows a profiling of an employee’s daily activities minute by minute is not permitted. The only way quality and performance evaluations are possible is to do random tests (e.g. all calls done by one employee within two hours of a day or one hour at different times for the duration of 3-4 weeks) or for a limited period of time individually, e.g. if a customer has raised a complaint against a specific employee (Art. 32 BDSB)

In exceptional cases a recording is legal, e.g. if it is essential to proof that an agreement has been reached or specific advice has been reached or a specific advice has been given (if no written documentation is available and / or sufficient) (Art. 32, 28 BDSG).

2. IS IT PERMITTED TO RECORD ALL TELEPHONE DATA EACH DAY (INCLUDING NUMBER OF CALLER, DURATION OF CALL, NUMBER OF CALLS PER DAY)?

To answer this question both areas of law, data protection and employment law, have to be addressed again.

The recording and storage of telephone data in a call centre again involves third party rights and thus requires their prior consent which can regularly not be obtained (with the exception of General business terms agreed with commercial customers).

Further it has to be differentiated whether it is allowed for employees to make private calls from the company phone or not. Without going into a details the permitted private use raises serious problems and should be avoided. In any case a recording / storage and use of (party) private communication data is generally strictly forbidden.

Most companies try to solve the data protection problems through the anonymization of data (e.g. deleting the last three digits of a calling or a called number).

Under employment law standards (“no permanent control”) it will be permitted to create statistics individually and companywide about the average number of calls and their duration and to compare these data with individual employee data, but it will not be allowed to create a daily profile of individual employees (e.g. determining time periods when he/she is not calling anybody for any reason).

Individual data have anyhow been seen as useless for performance evaluation purposes by labour courts for a number of reasons, among them the uncertain reachability of different target groups during the day, typical communication behaviour of target groups depending on profession, age, region etc.

3. (IN CASE OF FOREIGN COMPANY EVOLVEMENT) CAN DATA LEGALLY RETRIEVED BE TRANSFERRED AND USED OUTSIDE THE EU WITHOUT VIOLATION OF EU DATA PROTECTION LAWS?

After the end of a safe harbour grace period (on January 31, 2016) and before the introduction of the currently negotiated Privacy Shield the advice of data protection lawyers currently is to either refrain from any data transfer to countries with an insufficient Data Protection Level (such as the USA) or to rely on EU model clauses or binding corporate rules for the time being. It must be noted – however – that currently used model clauses are subject of a case pending at the ECJ and it seems highly likely that they will be invalidated by the ECJ as well. The same basically applies to Corporate Binding Rules, which are seen as inadequate to protect Employee interests.

Another (theoretical) option is to obtain consent from all employees concerned. While this must be agreed in an employment contract it remains to be seen whether European courts accept such clauses in case of dispute may be seen as violation of basic employee rights and can thus be judged to be null and void.

Anyway such clause must allow each employee to withdraw his/her consent at any time for no reason. The practical value of these clauses thus is seriously doubtful.

While some data might be transferable if such transfer is necessary for the performance of the contract the majority of performance related data will fall under the restrictions mentioned above.

Finally it needs to be mentioned that violations of Employee Data Protection and Personality Rights often constitute a criminal act. Therefore extreme caution is advisable in order to avoid personal consequences for company representatives.