D: Draft of an Employee Data Protection Act

On September 4, 2009, the German Federal Ministry for Labor and Social Affairs (BMAS) presented a draft for the Employee Data Protection Act (BFDatG). The objective formulated in the draft is the protection of personal rights of employees during data processing procedures by employers.

The draft for the BDatG regulates the data processing involved in both the application process and the subsequent employment relationship. According to the ministry, this act is necessary because of last year's scandals, which frequently involved unauthorized supervision of employees by their employers.

The draft includes bans on the creation of personality and health profiles. It regulates the use of video surveillance in the workplace, the use of biometric data, and the analysis of telecommunication services used.

For the first time, this draft states the demand for an agent in charge of employee data protection to monitor compliance with the employee data protection provisions, who would be appointed in addition to the data protection officer.

In addition to the fundamental provisions on data processing, this draft also contains a detailed listing of employee rights, e.g. a comprehensive right to information concerning the stored data. A new stipulation, which had not been established in previous data protection acts, is the indemnification claim, which now explicitly covers non-pecuniary losses in addition to pecuniary losses.

A final note about the draft bill is that although it undoubtedly offers a suitable basis for discussion, it will not advance to the Bundestag during the current parliamentary term.