Employer access vs. Employee privacy

To what extent may an employer obtain and use a variety of “private” employee information, such as medical and financial records, search employee work stations, and monitor employee PC’s, e-mail and business telephones, arrest and criminal records and credit reports?

In terms of the Protection of Personal Information Bill (‘POPI’), “personal information” means information relating to a person and includes all information about that person, including his or her characteristics and identifying information and correspondence that are implicitly or explicitly of a private or confidential nature.

POPI provides that personal information:

i) Must be processed lawfully and in a reasonable manner that does not unnecessarily infringe upon the privacy of employees;

ii) May only be processed if, given the purpose for which it is processed, it is adequate, relevant and not excessive;

iii) Must be collected for a specific, explicitly defined and lawful purpose related to the function or activity of the employer;

iv) Except in cases of emergency (such as when an employee may be out of office and an employer needs to collect data from his or her computer, urgently) the employer must inform the employee that it is collecting personal information, and inform him or her of the purpose of the collection of the information, save in limited circumstances.

Employers have many legitimate reasons for wanting access to information about their employees. For example, employers have a strong interest in ensuring that their employees are dependable, productive, law abiding, loyal and capable. Employers also have the need and the right, within certain boundaries, to control their workplace.

However, the extent of employers’ ability to control their workplace through means such as gathering information about their employees and monitoring their employees’ activities is limited by legislation and judicial decisions that are meant to protect employee rights, including privacy rights. Thus, in order to obtain important and useful data, employers must negotiate a mine field of laws and judicially created employee rights, and employers may find that the data they gather may only be used for very limited purposes.

We recommend that you introduce written employment policies and audit your existing procedures, to maximize the information available to you while minimizing your risk of legal liability, with the principles of POPI in mind.

Bregmans can assist you in that regard.

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