Rutkowski - legal aspects of new technologies

The proliferation of remote work, combined with the development of monitoring technologies, has led employers around the world to implement various, sometimes technologically advanced methods to check employees’ performance and commitment to their work. In this area, IT solutions and programs commonly called “bossware” are gaining popularity.

In practice, bossware can include a variety of solutions and technologies, such as:

• Keyloggers monitoring the employee’s use of the keyboard on a company computer
• Downloading and analysis of screenshots from the employee’s business device
• Tracking mouse movements
• Constant or periodic observation of employees using the camera (e.g. eye movement) or microphone on a business device
• Tracking the employee’s online activity
• Monitoring the use of business email, calendar and business messaging
• Analysis of the performance of applications and programs run by the employee.

A specific feature of bossware solutions is the frequent use of automated analysis to flag employees whose productivity, commitment or manner of work deviates from the employer’s expected norm, without their superiors’ involvement.

Polish employers are also reaching for bossware. In this regard, we describe below what they should take under consideration in light of Polish labour law and data protection law.

Entities transferring personal data outside the European Economic Area on the basis of standard contractual clauses that are no longer in force (where the transfer began before 27 September 2021) should conclude agreements based on new clauses by 27 December 2022.

Under the General Data Protection Regulation, the transfer of personal data to “third countries” (outside the European Economic Area) is only permitted if the conditions set forth in the GDPR are met, i.e. generally when:

• The transfer is made to a country which the European Commission has determined provides an adequate degree of protection (i.e. it has issued an adequacy decision—decisions issued so far are available on the European Commission website)
• If there is no adequacy decision, then adequate safeguards are provided, including in the form of conclusion of an agreement based on standard contractual clauses between the entities involved in the transfer
• If there is no adequacy decision or adequate safeguards, then one of the special circumstances specified in the GDPR applies.