Employee monitoring is currently more and more frequently used in the sphere of labour law as an important measure of employee supervision, mainly due to the enormously quick technology development enabling monitoring various aspects of activities of employees. In spite of this fact, the majority of employers have no knowledge on how to duly fulfil their duties in this area in order for the monitoring to be in compliance with law.

It is necessary to stress, that the performance of work is not essentially considered to be an area belonging to the personal sphere of an employee. On the other hand, it is clear, that currently, the employees spend the main part of their lives at their work place, and therefore they should have the possibility to resolve their personal issues in an adequate extent at work and for this purpose, the employer should provide the employees with privacy. This statement was upheld by the European Court of Human Rights, which concluded, that an employee may reasonably expect the privacy at the workplace, which should cover all areas of communication via electronic mailbox, phone calls, writings and so on.

In cases where the employer intends to interfere with the privacy of the employee through monitoring, he is entitled to do so, as long as he fulfils various conditions, arising from the legislation or judicial decisions.

The employer is entitled to monitor his employees pursuant to Sec. 13 Subsec. 4 of the Labour Code: “The employer shall not without profound reasons related to the individual character of the activities of the employer interfere with the privacy of the employee at workplace and common areas of the employer through monitoring, recording of phone calls realized via technical work devices belonging to the employer and control of e-mails send from an electronic work address and delivered to this address, without a previous notice.”

With regard to such aspect, it is clear, that the employer is generally entitled to monitor the employee, although this right is subjected to certain limits.

The employer is entitled to monitor his employees under conditions which were transparently specified by the European Court of Human Rights in the decision of Bărbulescu v. Romania. This case precluded that it is possible to conclude that these conditions are generally enshrined in Sec. 13 Subsec. 4 of the Labour Code.

The pertinent conditions of employee monitoring may be summarized into the following points:

1. it is necessary to inform the employee about monitoring before the commencement of such monitoring,

2. the extent of the monitoring and a level of privacy disturbance of the employee shall be adequate,

3. reasons justifying the need to monitor the employees shall exist,

4. the employer shall evaluate whether less invasive measures may or may not be used to monitor the employees,

5. the employer shall adopt all measures restricting adverse effects of the monitoring on the employee,

6. adopted adequate measures shall ensure protection of privacy of the employee in the broadest extent possible.

With respect to the above-mentioned, before the employer commences to monitor the employees, it is advisable to draw up an internal directive containing an information about fulfilment of all the above-mentioned conditions for monitoring of the employee in compliance with legislation and simultaneously, to inform the monitored employees about the pertinent document in a provable way.

The following text may serve as an example wording of such a directive:

“The employer notifies the employee, that he is being monitored at the workplace via a camera system placed in the premises of the employer, in which the employee works. The employer installed the camera system, as in the past a crime of robbery was committed in the premises of the employer and as the employees incorrectly handled money and other fees during performance of their work, through which the employer suffered a damage. The extent of monitoring of employees was adjusted by the employer to a necessary level. Camera records solely when the premises of the employer are open and accessible to public and the camera system monitors only a part of the premises, in which a cash register is placed. The level of privacy disturbance of the employee is therefore minimal. The employer decided for this form of monitoring, as less invasive measures were not sufficient to ensure the protection of assets of the employer, as well as life and health of the persons in the premises of the employer. The employer adopted all adequate measures for the effects of the employee monitoring to be as small and reasonable as possible, mainly: the screens of the camera system are located in an area secured against the access of unauthorized persons, camera records are preserved only for the period of fifteen calendar days, only the statutory body of the employer has access to the camera records, monitored area is clearly marked with a warning sign on use and location of the camera system.”

With respect to the above-mentioned, it is clear that a breach of law relating to monitoring is quite frequent in practical life. Albeit, the employer may easily and effectively comply with the monitoring and adherence of legislation and avoid sanctions imposed by relevant control authorities, as well as duties to satisfy the claims of the monitored employees arising from the illegal activities of the employer.