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German Labor Court Allows Review of Employee’s Browsing History

European courts continue to clarify the right of employers to review their employees’ emails. As we discussed previously, the European Court of Human Rights and the National Labor Relations Board of the U.S. have recognized that employers have the right to monitor their employees’ internet communications in order to ensure productivity during work. 

Shortly after the ECHR opinion, the German Regional Labor Court in Berlin-Brandenburg held that an employer was entitled to check an employee’s internet use without consent and that the employee’s excessive personal use of the internet during company time justified immediate termination. In the case, the employee had a work computer that, according to company policy, was only allowed to be used for work-related purposes. The employer was told that the employee often used his computer for non-work activities, such as surfing the internet. The employer first checked and saw that the employee’s volume of data for his internet usage was surprisingly high, and then decided to actively monitor the employee’s internet use for 30 days. Over that month, which would constitute approximately 160 working hours, the employee logged almost 40 hours of private internet usage. The employer immediately terminated the employee for good cause. The employee challenged the termination on the grounds that his browsing history could not be monitored without consent, and that therefore the browsing history should be excluded from trial. The Regional Labor Court ruled for the employer on each claim. The court held that:

  1. The employee’s actions were a valid reason for an immediate good cause termination.

  2. Under the Federal Data Protection Act, the employer was allowed to gather the information from the employee’s computer even without consent, and the browsing history was therefore admissible. The court held that data can be gathered when it relates to the working relationship, and that consent was not necessary because it would not have altered the nature of the review and there was no other way for the employer to monitor this misuse of company time.

  3. Finally, the court ruled that the employer was not a service provider under the more stringent German Telecommunications Act. This is important because it allowed the company to access the data following only the less restrictive provisions of the Data Protection Act.

Notably, the employee has appealed this decision to the national German labor court, which may decide whether employers are service providers under the stricter Telecommunications Act. This would limit the ability of German employers to monitor internet usage.

The decision is consistent with the decision of the ECHR in Barbulescu: that employers are allowed to monitor employee use of work computers to ensure productivity during working-hours. The decision also affirms prior German labor court rulings that have held that extensive unauthorized private use of the internet can justify termination. Employers should be aware that this case is currently under review, and that the national court’s decision may impose stricter monitoring and consent requirements on employers.

However, the decision illustrates a promising uniformity across jurisdictions. Namely, there is a growing acceptance of the right of employers to monitor employees’ use of company computers when used to ensure productivity, provided that the company’s policies and rules clearly detail the employer’s right to monitor internet usage on company equipment.

© 2019 Proskauer Rose LLP.


About this Author

Erika C Collins, Labor, Employment, Attorney, Proskauer Rose, LAw Firm

Erika Collins is a Partner in the Labor & Employment Law Department and co-head of the International Labor & Employment Law Group, resident in the New York office. Erika advises and counsels multinational public and private companies on a wide range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia.

Daniel Ornstein, Litigation Attorney, Proskauer Law FIrm

Dan Ornstein leads our London labor and employment team and is a co-head of our International Labor & Employment Group. He has over 15 years of experience dealing with a broad range of UK and international employment issues. Dan is a go-to advisor for clients who rely on his sophisticated advice both on day-to-day matters and high-stakes situations. Dan is ranked in Chambers UK, which describes him as "incredibly analytical", "incredibly intelligent and an excellent sounding board” and someone who “displays both empathy and an assured knowledge of the best way to treat cases." He is also recognized in Legal 500 UK and International Who's Who of Management Labour & Employment Lawyers.

Law Clerk

Yonatan Grossman-Boder is an associate in the Labor & Employment Law Department. He assists clients in a wide range of labor and employment law matters, including litigations, arbitrations, employment discirmination, labor-management relations and internal investigations.  

At Duke University School of Law, Yoni served as the publication and lead articles editor of Law and Contemporary Problems and was a legal intern at the New York Human Resources Administration Employment Law Unit. As a legal intern, he worked on a variety of employment matters, including employment...