New rules on the use of technology for workplace safety and employee monitoring

In September 2015 the Italian Government issued the final decree under the Jobs Act. It includes new rules which liberalise the use of technology for workplace safety and employee monitoring.

Under the old law, the use of technology to monitor employees at work was generally forbidden because it represented an unlawful intrusion by employers into the privacy of their employees. For the most part, the only lawful means that employers had to monitor employees was through a supervisor.

Employers were allowed to install CCTVs, but only if the purpose of using this technology was to prevent theft or provide security and not for the purpose of employee monitoring. Consequently, an employer was allowed to install a CCTV at the entrance to the place of business to monitor who entered the building, but was not allowed to install a CCTV above a cash machine to monitor the activity of a cashier. Furthermore, employers were required to obtain an authorisation to install CCTVs, in agreement with the relevant labour union or local labour office, and were restricted as to how the data acquired by them could lawfully be used.

Under the new rules, employers may use new types of technology for security purposes and for employee monitoring.

For example, employers may still use CCTVs to protect company property and provide a secure workplace for employees and clients. As before the reform, the employer has to obtain an authorisation to install these devises, but the procedure for obtaining the authorisation has been simplified. Employers with multiple places of business in different regions, for instance, may now obtain a single authorisation from the Ministry of Labour, instead of having to request multiple authorisations from numerous local labour offices, as was the case prior to the reform.

Moreover, under the new rules, an employer may require that their employees use technological devices, such as smartphones, laptops, GPS systems and e-badges, without having to obtain prior authorisation by unions or other labour offices.

In particular, the new rules state that an employer no longer needs an authorisation to distribute to employees «devices used by employees to carry out their activity/duties» and «devices used to register their access and their presence».

This is a big step in liberalising the use of technology for employee monitoring and illustrates the desire to bring the legal framework up to date with the modern usage of technology by businesses.

The new rules do not set out clear guidelines as to which technological devices require prior authorisation and which do not, which presents a challenge.

Is authorisation required prior to the distribution by an employer to its employees of smartphones if the device is enabled not only for the basic service of making telephone calls and sending/receiving e-mails, but also if it contains an app that would allow the employer to track the employee’s movements?

Similarly, what is the scope of the liberalisation where an employee who is allowed by company policy to install company software and use personal devices for work purposes (‘BYOD’ policies)?

The new rules state that all lawfully acquired data may be used by the employer for any purpose linked to employment, including disciplinary procedures and dismissals, subject only to the following procedural requirements:

• The employer is required to draft a policy to explain to employees:
  • the proper use of any technological device provided by the employer to the employee and
  • what kind of employee monitoring the employer is allowed to conduct and how it will be conducted.
• The employer must comply with the Italian Data Privacy Code, which, for example, provides that:
  • the data collection must be a necessity to the business (inevitability) (i.e. it is not possible to avoid it.)
  • the employees must be informed of any data collection (correctness)
  • any sacrifice to the employee’s privacy must be balanced against a legitimate purpose (proportionality).

The new rules give employers greater freedom to use technology to improve workplace safety and to monitor more efficiently some activities of employees. However, in order to protect employees’ rights, the new rules also impose certain requirements on employers who intend to use technological devices for these purposes.

Before installing or distributing technological devices to employees, or investing in the purchase or installation of new technologies for safety or employee surveillance, companies should become aware of the new rights and restrictions which employers have under the new Italian laws. In some cases, prior to using new technological device, the company may be required to draft and distribute internal communications as well as implement a written code of conduct regarding the use of these devices.