Do I have to obtain employees' consent in order to collect their personal data?
The processing of any personal data may impose obligations to the individuals the data is related to, the data subjects. Some jurisdictions only recognize processing personal data as lawful if the data subject has provided express consent. Other jurisdictions require a legal obligation to process the data and may not require consent. The processing of HR personal data has raised questions and court decisions in a few countries, and interpretations may vary based on data privacy and labor law requirements.
The concept of employee consent has been increasingly criticized because there is doubt as to whether consent can be given freely in the subordinate employee/employer relationship. There are more prescriptive requirements for obtaining consent under the General Data Protection Regulation, including the ability to withdraw consent at any time.
The legitimate interest of employers can sometimes be invoked as a legal ground for processing personal data, but only if the processing is strictly necessary for a legitimate purpose and the processing complies with the principles of proportionality and subsidiarity. A proportionality test should be conducted in order to consider whether all data collected is truly necessary, and measures must be taken to keep personal data processing limited to the minimum necessary.
Clear communications should be provided to employees, informing them how their personal data is being processed. Where possible, such as in the event of monitoring technologies, employees should be given the option to prevent their data from being captured. Where employees are expected to use online applications which process personal data, they should consider enabling employees to designate certain private spaces to which the employer may not gain access under any circumstances, such as a private mail or document folder.
Allowed Employee and Applicant Data in Poland
The Polish Labor Code lays out the personal information that an employer may collect from an applicant and employee.
Employers can request the following from job applicants and employees: name, name of parents, date of birth, residential address, education, employment history.
Employers may also require the following from hired employees: personal data including surnames and dates of birth of employee’s children if required for employees to exercise rights provided by the labor law; PESEL number (government I.D.); and, other legally necessary data.
In addition, the Personal Data Protection Act specifically allows video recordings in the context of employment if it’s necessary to protect employees, property, production or confidential data (Article 111). Note, video recordings can’t be used in certain areas such as break-rooms and bathrooms. In order to use video recordings:
- the recordings can only be used for their original purpose;
- the method, scope and objectives are set in a collective agreement (or, if there is no collective agreement, employees are informed);
- employees must be notified in writing in advance of starting employment or, are provided with at least two-week’s notice if it’s a new system;
- signs or sound-notices must be located in the recording area;
- and, data must be deleted within 3 months of the recording, unless there is a legal claim.
HR Best Practices: As consent on its own might not be enough to justify lawful processing of employee personal data, other processes should be documented and implemented. Consider legitimate requirements, such as those outlined in Poland's Labor Code. Commit to properly informing employees, documenting legal rationales for data collection and offering consent/correction/deletion where possible.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.