Tracking App for employees?

In connection with the discussion about the right measures to contain the Covid19 pandemic, the introduction of an app is often discussed. This app should help to track contacts with infected persons at an early stage, so that the chains of infection can be broken earlier. 

The discussion is an occasion to take a look at the permissibility of tracking employees by their employer. Tracking means on the one hand the localisation of employees, but also the creation of movement profiles. In some cases, localisation takes place within company premises, for example for access control or time recording. This is often done using RFID (radio-frequency identification) systems. These systems allow automatic and contactless identification and localisation of objects and living beings. Outside the company premises, localisation is usually carried out using GPS-based systems, which then send the data to a server of the employer. The GPS receivers can be installed in vehicles or in handhelds used at work. However, employers often also use the smartphones provided to their employees to determine and track their location. For example, employers can better control their truck fleets, announce precise deliveries to customers, etc. It is also clear, however, that in addition to these possibilities, the data can also be used to monitor employee behavior. Movement data can show, for example, that an employee has made a detour on the way to a customer that could not be justified by official duties.

For the processing of this data, i.e. its collection and storage, the employer needs a legal authorisation. In certain areas, there is even an obligation to record certain movement data, such as for trucks and buses. However, these are exceptional cases. Incidentally, the basis for the processing can be sec. 26 Federal Data Protection Act, which declares the processing permissible to the extent necessary for the purpose of carrying out an employment relationship. And the performance of the employment relationship also includes performance and conduct checks of employees. Whether and to what extent tracking is permissible depends on the circumstances of the individual case. If, for example, an employer receives an order that has to arrive with a customer within the shortest possible time, it would certainly be permissible, after receipt of the order, to find out by means of a localisation of all relevant employees which employee can arrive at the customer’s premises the fastest and then send them off. But for this, the employer does not have to continuously determine the positions of its employees or create movement profiles, nor does it have to store the corresponding data.

As with any processing operation, the principle of earmarking must also be observed in tracking. Personal data may only be processed for the purpose for which it was collected. If an employer of a delivery company wants to determine the position of its delivery vehicles (and thus also the position of the employees in the delivery vehicle) in order to precisely predict the arrival time of their parcels to the customers or to optimally control its fleet of vehicles, this may be permissible. On the other hand, the storage of position data for the purpose of monitoring workers is not likely to be allowed. 

If the employer uses a smartphone provided to the employee to determine location data, it may have to inform the employee of this in accordance with statutory law.The question remains as to whether the employer can require its employees to use a tracking app to combat Covid19 if such an app is launched on the market. The aim of the employer, who would not receive the data of this app itself, could be to gain early knowledge of possible infections in its workforce in order to prevent a further spread of Covid19 among the workforce. This is a legitimate goal. However, it would be going too far if the employer were to oblige its employees to use an app, which can only be used voluntarily. It can therefore only appeal to the voluntary and reasonable attitude of its employees.

By Dr. Michael Witteler