D: Changes and amendments of the BDSG 2009: Data Protection in Employment Relationships

Category: Nachrichten, Gesetz
By: M. Belke - 2B Advice GmbH - the privacy benchmark

Amendments to the Federal Data Protection Act and the effect thereof on companies - Part 1

 

The term "employee" has now been defined for the first time in the Federal Data Protection Act (Section 3 (11) Bundes Datenschutzgesetz, BDSG new version). This clarifies that persons in employee-equivalent positions, such as those rehabilitating, are also covered by the protective purpose.  This is important in relation to the (new) rules on the collection, processing and use of personal information for the purposes of an employment relationship (Section 32 BDSG new version).

The provisions on employee protection do not, however, result in any changes since the employment relationship in question was, to date, also based on a contract in the form of a service or labor contract, and the processing of relevant data was covered by the permission requirement set forth in Section 28 (1) sentence 1 No. 1 BDSG old version.  Section 28 (1) sentence 1 No. 1 is, however, no longer applicable to employment relationships. The purposes which previously had to be specified by the employer pursuant to Section 28 are now set forth in the new Section 32 BDSG new version. This dispenses with corresponding documentation requirements on the part of the employer.

Section 32 BDSG new version, which does not apply to the civil service, furthermore clarifies what has applied to date, but was not expressly stated.   When collecting and using personal data to solve crimes such as theft or corruption, for example, stringent demands are made in terms of necessity and proportionality.  The severity of the crime and the intensity of the suspicion must be taken into account here.  Section 32 (3) BDSG new version clarifies that the participation right of representatives must always be upheld.

Section 32 contains general provisions for the protection of the employees' personal data, which do not alter the principles determined by the legislator and the courts thus far, but draw a distinction between the protection of the employment relationship and general contractual relationships. This amendment to the BDSG renders an Employee Data Protection Act neither obsolete nor predetermined for the future.

(1793 times viewed)