The processing of personal data in the context of employment relationships is a crucial area of regulation and protection of employees’ rights. Within the European Union, the General Data Protection Regulation (GDPR) provides a strict legal framework governing the collection, processing, and storage of employees’ personal data, ensuring that these activities are conducted transparently, legally, and fairly.
Ensuring the security of assets, spaces, systems, or information, as well as fulfilling contractual requirements, are just some of the legitimate interests that may justify the use of workplace monitoring systems by an employer. Justifying this interest is essential for the monitoring to be carried out legally. Law no. 190/2018 imperatively sets out the conditions under which the processing of employees’ personal data is permitted, aiming to achieve the legitimate interests pursued by the employer when monitoring systems are used, including electronic communication means and/or video surveillance systems in the workplace. Thus:
- The legitimate interests pursued by the employer are thoroughly justified and prevail over the interests or rights and freedoms of the data subjects;
- The employer has conducted the mandatory, complete, and explicit prior notification of employees;
- The employer has consulted the trade union or, as applicable, employee representatives before introducing monitoring systems;
- Other less intrusive forms and methods for achieving the employer’s goal have previously proven ineffective; and
- The storage duration of personal data is proportional to the purpose of processing but does not exceed 30 days, except in cases expressly regulated by law or thoroughly justified situations.
The use of materials resulting from employee evaluation may be considered excessive and unnecessary processing of personal data, especially when companies cannot clearly justify their necessity. If the use of systems exceeds the initially declared purpose, a compliance issue arises. Regarding this aspect, Emergency Ordinance no. 95/2024 establishes a negative obligation not to use these recordings for the professional evaluation of teaching staff.
However, the silence of the law regarding employees in the private sector, regardless of the field of activity, allows employers to use material resulting from audio-video surveillance in disciplinary investigations. Nonetheless, this purpose must be explicitly stated in the personal data processing policies or information notices displayed at the employer’s premises or workplace, which employees must be informed about and must consent to.
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Ana Maria Nistor – Attorney at Law
