Does an employer have the authority to monitor verbal interactions?
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Employee Chat Sessions: Record or Jot Down? The guidelines are crystal clear, whether you're the boss or the worker. A seasoned labor lawyer explains what's allowed and who has what privileges.
Employee interactions tend to occur between a supervisor and an employee, and these interactions are often recorded in writing, with the conversation details typically being forwarded to the HR department. But what if the boss decides to record the conversation, creating an audio file of the entire interchange? Is this a go?
"Without any further ado," says Johannes Schipp, a seasoned labor law lawyer. In this scenario, alongside an employee's right to privacy, the regulations of the General Data Protection Regulation (GDPR) also come into play. So, it's straightforward: "No one is compelled to tolerate their conversation with their boss being secretly recorded."
Consent can be revoked
The GDPR clearly stipulates that data should not be processed without consent, asserts Schipp. Recording without prior consent would constitute such a data processing activity.
Therefore, even if someone has initially consented to a recording, they can later rescind their consent. In this case, the recording should be eliminated if necessary, as the data is not essential for fulfilling the employment agreement, says Schipp. "From my perspective, the legal situation is clear-cut."
Secretly recording calls is risky
By the way, the same rule applies in reverse: Employees should not secretly record conversations, especially if the employer remains unaware, advises the seasoned lawyer. Secretly recording calls, for instance, is strongly discouraged. And even if employees seek consent prior to recording, very few employers would approve of such recordings.
About the person: Johannes Schipp is a member of the German Bar Association (DAV) and previously served as the chairman of the executive committee of the labor law working group in the DAV, until August 2021.
In this context, employers need to be aware that recording conversations with employees without their consent is against the regulations of the General Data Protection Regulation (GDPR). Consent can be revoked, and if an employee withdraws consent after initially agreeing to a recording, the recording should be deleted if not crucial for the employment agreement. Additionally, employees should avoid secretly recording conversations with their employers, as it's strongly discouraged and unlikely to gain approval.
