Employment Law 2.0

Digital revolution and the working environment

New media and the digital revolution are changing our lives at an enormous speed. While this is true for all areas of life – it is even more so for the working environment, as every successful business wants to adapt its organizational structures and processes to the growing potential of the information society. Thus, most of the employees in Germany see themselves – more or less – confronted with profound changes. Therefore, German Labor and Employment Law needs to deal with the issues arising from the use of new media.

The role of German Labor and Employment Law

First of all, the new options expand the personal freedom of each individual employee and allow abrupt increases in productivity for a business. But German Labor and Employment Law is primarily constructed as employee protection law: Its mission is to protect the employees from the dangers which are the flip side of these chances. In essence, this is about protecting traditional civil rights in the employment relationship. Hence, it is the role of German Labor and Employment Law to restore a reasonable balance between the new economic opportunities on the one side and the potential violation of individual rights in the digital world on the other. This also applies to all forms of expats in Germany.

Mixing of work and leisure in the Employment

Most office jobs in Germany are hard to imagine without permanent access to intranet and internet. In addition, the use of smart phones on the job is often considered to be natural. This leads to a liberalization of the rules on working time and working place, as only the achievement of certain targets is really crucial for a good performance on the job. This bears an undeniable advantage for the employee in terms of flexibility, but can also be restrictive if it leads to a significant increase of the absolute working time or a constant availability that sets aside the separation between work and leisure.

Mixing of public and private interests in the Employment

The trends and developments in Germany in the field of social networks like Xing, LinkedIn, Facebook, Google+, Twitter and Skype make it appear normal that employees use their private accounts to network with customers and clients in the interest of their employer. Moreover, it is expected that opinions, beliefs and views that are announced through social media networks are consistent with the employer’s corporate values. Of course, private (or partly professionally motivated) emails are sent via company accounts, the company’s internet connections are used for private purposes and laptops and smartphones are used for non-business purposes – in Germany usually with the approval of the employer. In a growing number of large companies, the use of private notebooks or smartphones is promoted for professional use to a considerable extent ("bring your own device"). From the perspective of German Employment Law, this raises the question of how to deal with corporate data on personal devices when an employee leaves the company or a specific department. Can the employer request for deletion of – maybe “semi-private” – contacts?

Control options, monitoring and employee privacy under German Law

The use of intranet, internet and social networks leaves digital traces that allow a relatively accurate reconstruction of work behavior. For the employer, it is easily possible to search through all available online sources, including the user accounts in social networks in order to gather information about his employees. In addition, the simplified data transfer in a digitalized world enables more straightforward monitoring measures than ever before (GPS positioning in vehicles or smart phones, webcams, audio monitoring etc.). Technically, it is easily possible to combine appropriate monitoring profiles with additional data from other areas of life and mutually enrich the databases (“Big Data”). This is, under German Labor and Employment Law, highly problematic in terms of employee privacy – especially when the data is being exchanged cross-border (Federal Data Protection Act – BDSG, Telecommunications Act – TKG, Telemedia Act – TMG). A further question to be raised under German Law would be whether the employer’s findings through digital monitoring in any kind could be the basis of Employment Law measures up to and including a termination. At an earlier level it could already be asked what information the employer may obtain about potential candidates in order to evaluate their likely development opportunities in the company ("applicant screening"). Both questions are controversial under German Employment Law.

Telecommuting, out-sourcing and off-shoring under German Employment Law

The increasingly powerful communication channels of the internet allow employees to perform their duties not at a specific location, but in any office or home environment of their choice. This has been practised for many years in some office and sales activities und is unproblematically in accordance with German Employment Law. This development gives employees a greater flexibility – especially in the context of a better work-life-balance. At the same time, the possibilities of information technologies also enable employers to more easily mandate external service providers for certain activities (outsourcing) that may be located in low-wage countries (offshoring). This increases the negotiating pressure on the employees in Germany and Western Europe in terms of their salary level. Another issue arising is the scope of German employee protection legislation in cross-border situations (KSchG, AUG, AEntG) and the international jurisdiction of the German Labor Courts.

Employee inventions and copyrights under Employment Law in Germany

In connection with the opportunities of IT in practice, the question of how to deal with employees' inventions or other intellectual property rights arise. As for German Employment Law, this is dealt with in the Employee Invention Act (ANErfG) and the UrhG: It is laid down in these provisions that the employer either has to register and exploit the IP rights of work inventions and compensate the employee or to transfer these rights to the employee. The practical significance of these regulations in German Employment Law is highlighted by the fact that around 80-90 % of all patent applications are based on inventions of employees and about 75 % of all copyrightable creative achievements are created by employees.

Employment Lawyer in Germany

Our German Employment Lawyers will enforce your claims connected to the Employment relationship that arise from the new IT opportunities or will defend your business against such claims. At the overlaps between Labor and Employment Law and Internet Law, Attorney Dr. Christian Zeller vigilantly represents your interests and the interests of your business. German Attorney at Law Dr. Zeller provides nationwide courtroom representation before all Labor and Employment Courts in Germany.

ZELLER & SEYFERT PartGmbB is available for you 24 hours a day, 7 days a week by phone at +49 (0) 69-58 80 972-40, by email (mail@zellerseyfert.com) or via contact form. Please also check our 24/7 access on the left, where you are welcome to arrange a short consultancy (free of costs) or to request a call-back within 24 hours. Live chat is also available. We look forward to hearing from you.

 

Recommended Links:

- German Employment Law Blog - Video surveillance at work

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