Employee surveillance: could your employer be condemned like Amazon?

Employee surveillance: could your employer be condemned like Amazon?

Capital – The CNIL has just revealed that it has fined Amazon in France €32 million. What are the digital data police accusing the US group of?

Julien Brunet: As you say, the CNIL is responsible for ensuring that, in a fully digital era, the private life of the French is respected and that their personal data is processed without abuse. Based on employee complaints as well as articles in the press, this independent administrative authority carried out several inspections in Amazon’s warehouses in France in 2019 and found team supervision practices that it considered abusive with regard to the General Data Protection Regulation (GDPR).

Capital: Which one exactly?

Julien Brunet: When you have to process millions of items in the warehouse and ensure a perfect delivery service, it is obvious that the management must be highly computerized. In addition, Amazon is very well known in this area. Every time one of her employees handles an item, whether it’s to store, prepare or pack it, they have to record their task by scanning the product in question. The problem is that this control system can easily be used to monitor the activity of employees by calculating their productivity and, conversely, idle time. That’s what happened here, according to the CNIL, which criticized three indicators, one signaling errors in the case of products being registered too quickly, and the other two counting periods when scanners are not used by employees. In addition, the Commission considered that the collected data had been kept for too long. Ultimately, she believed that the implementation of video surveillance left something to be desired, particularly the lack of information about the people being filmed.

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Capital: How can an employer monitor work on their premises while staying on track?

Julien Brunet: The performance of activity control must fulfill three obligations without fail. The first is transparency. All employees who will be monitored must be clearly informed in advance, including temporary or part-time employees. Then the procedure followed must be perfectly recorded in documents accessible to all. Finally, the measures taken must not be disproportionate to the desired objective. If a company has a legitimate interest in monitoring to improve its operations, it cannot conduct excessive IT surveillance at the risk of being too intrusive.

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Capital: The problem is, where is the line?

Julien Brunet: This notion of proportionality, which is essential, is also very complicated to define. There is no text that states exactly what is or isn’t legal. The GDPR simply states that data collected must be limited to what is absolutely necessary depending on the purpose pursued. This is called the principle of data minimization. After that, only a judge will be able to decide on a case-by-case basis. In this case, it should also be noted that Amazon is contesting the decision of the CNIL and has the option of filing an appeal with the Council of State. The American group believes that its monitoring contributes both to better safety of its employees and to optimized work planning. The CNIL considers that the use of aggregated and non-personalized data could be sufficient.

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Capital: It’s probably not just Amazon that’s tracking its employees. How far can employers go in using collected data to evaluate their employees?

Julien Brunet: Surveillance is not a fantasy, and technological solutions exist for remote control of employees’ work. But we have seen it: information for employees, the adequacy of the measures taken… everything is still very regulated in France. The uses to which managers and HR departments can put this data are also typically limited. Although his boss’s remark is not formally reprehensible, the sanction would have a good chance of being overturned in court.

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