Oh telecommuting! Starting your day in pajamas on the couch with your laptop on your lap. The Covid crisis will have had at least one advantage in terms of working conditions: teleworking has become widely democratized.
But while this practice has many advantages (flexibility, autonomy, reduced travel), it also raises questions about controlling and monitoring employee productivity. While most studies show that employees are more productive working from home, this does not prevent some employers from being suspicious.
Thus, many companies set up monitoring devices on the equipment used by employees. But is it allowed?
Can your company spy on you when you are working remotely? If so, what are the rights and duties of employers and employees? What are the means and limits of this remote monitoring? What does your company risk in the event of abuse? We tell you everything.
Legal framework for telework
According to article L. 1222-9 of the Labor Code, telework is defined as “any form of work organization in which work which could also have been performed on the employer’s premises is carried out by an employee outside these premises on a voluntary basis using information and communication technologies” .
Telework can be set up by a collective agreement, a charter drawn up by the employer after consulting the social and economic committee (CSE), or by a simple agreement between the employer and the employee. This provision therefore implies rights and duties for both parties.
The teleworker benefits from the same rights and obligations as the employee who performs his work on the premises of the company., in particular in terms of working hours, rest, health and safety at work, or vocational training. In return, he must respect the instructions of his employer relating to the execution and control of his work, as well as the rules relating to data protection and confidentiality.
For his part, the employer must ensure that the teleworker has the equipment necessary for the exercise of his activitythat he is informed of the applicable health and safety rules, that he can benefit from regular monitoring and technical support, and that he can maintain social ties with his colleagues and his hierarchy .
So much for the main principles of teleworking.
Can your company monitor you remotely?
So let’s get to the heart of the matter. Can your employer monitor everything you do while you are working remotely? Short answer: no. On the other hand, your employer does have the right to monitor your activity, but under certain conditions.
The employer’s control must first be justified by a legitimate reason related to the nature of the task to be performed or the proper functioning of the company (for example, ensuring data security, preventing professional risks, evaluating performance, etc.).
This control must be proportionate to the aim pursued, i.e. it should not be excessive or permanent, and that it must take into account the specificities of teleworking (for example, respecting the right to disconnect, adapting control to the objectives set, etc.). Bulk, your employer can’t watch you all day nor spy on your every move as if it were resting on your shoulder.
Above all, the employer is obliged to notify you in advance (as well as the CSE) of the implementation of this control. You must be informed in particular of the nature, methods and duration of the control put in place, as well as the possible consequences on its evaluation or remuneration. In addition, the CSE must be consulted on any project to introduce or modify a technical device allowing individual control.
Finally, the control put in place by the employer must guarantee respect for the employee’s private life. This also applies if you use the tools made available by the company. Thus, the employer cannot access files or messages identified as personal by the employee, nor use the employee’s webcam or microphone without his consent. Similarly, the employee cannot be geolocated outside of his working time or business trips, unless agreed by both parties.
What sanctions in case of abuse?
In the context of teleworking, employers and employees are both liable to penalties in the event of non-compliance with the agreed provisions.
If the employee does not respect the rules relating to teleworking, he is liable to disciplinary sanctions which may go as far as dismissal for misconduct. For example, he may be sanctioned if he does not respect his working hours, if he uses the equipment provided by the employer for personal or illicit purposes, if he divulges confidential information, or if he refuses without a valid reason to return to work on company premises.
On the employer’s side, sanctions apply in the event of abuse relating to the control and monitoring of the teleworker. He may be ordered to pay damages to the employee for invasion of his privacy or dignity. For example, he can be sanctioned if he sets up a surveillance system without informing the employee or the CSE, if he accesses the employee’s personal data without his authorization, or if he exercises disproportionate or permanent control. on the employee.
As you will have understood, if your employer cannot supervise you as he sees fit, you must also, as an employee, respect the rules agreed with him in the context of your activity.
