An Employee’s Right of Erasure Under the GDPR
The implementation of the European Union’s General Data Protection Regulation (GDPR), with an effective date of May 25, 2018, is just around the corner, and with it will come pressure on the human resources (HR) department to update its approach to handling employee data. The GDPR significantly enhances employee rights in respect to control over their personal data.
In particular, the GDPR introduces the concept of a “right of erasure” i.e. a ‘right to be forgotten’. Although the concept currently exists under EU law, it is currently applicable under very limited circumstances, when data processing may result in damage or distress. Under the GDPR, pursuant to Article 17 and Recital 65, an employee will have a right to have his/her data erased and no longer processed, where consent of processing is withdrawn, where the employee objects to such processing, or where processing is no longer necessary for the purpose for which it was gathered. That said, the employer, under certain circumstances, can refuse to comply with an employee’s request for erasure of personal data – where data processing is required by law or in connection with a legal proceeding.
Further, there is a time limit for responding to a request for erasure of data by an employee. An employer will be required to comply with a request by an employee ‘without undue delay’, and not later than one month of receipt of the request, together with the reasons for delay (Article 12).
To effectively meet the GDPR’s new requirements, employers will need to take stock of the employee data they process related to EU operations (see Does the GDPR Apply to Your U.S.-based Company?). What categories of EU employee data are processed? What categories of EU employee data are processed? Where does it comes from? In what context and where is it processed and maintained? Who has access to it? Are the uses and disclosures being made of that information permitted? What rights do EU employees have with respect to that information? The answers to these questions are not always self-evident. Employee data may cover current, former, or prospective EU employees as well as interns and volunteers. It may come from assorted places and be processed in less traditional contexts.
To better understand how an employee’s “right of erasure” will impact day-to-day HR operations, below are a few practical examples of instances where an employee will have the right, under the GDPR, to request that his/her data be erased and no longer processed.
Circumstances where an HR department may be compelled to erase employee data:
- You collected the data during the employee’s hiring process, but, following the completion of that process, you can no longer demonstrate compelling grounds for continuing to process it. Such data could include, inter alia: (i) past employment verifications, (ii) education and credential verifications, (iii) credit reporting and other financial history data, (iv) government identification numbers.
- You collected data about an employee in order to administer benefits to him or her, but the employee has since de-enrolled from the benefits program.
- You collected employee online monitoring data for work productivity purposes – but you collected data which the employee does not expect is reasonable processing (personal emails, personal messenger conversations, etc.).
- You collected employee data (g., profiling data) for use in evaluating whether to promote an employee to Position X, but end up promoting another employee to that position instead.
- You processed data related to employee job performance issues (g., late arrivals, absences, disputes with a coworker, etc.) a number of years ago, and the employee has not had similar issues since.
- You collected identifying data on an employee such as an employee’s past address, phone number, email address, username, financial account information, etc., but the employee has since provided updated information.
Employers must be ready to comply with the new EU data regime upon its effective date next month. If your organization has not already started, it should begin implementing policies and procedures that inform employees of their enhanced rights to control over their personal data, ensure that operationally the organization can comply with such rights, and train HR personnel handling employee requests for erasure of data. This includes developing a plan of how to respond timely and effective to employees’ requests, and a review process for when there is a legal basis to deny a request.