Labor Court of Ber­lin: data pro­tec­tion in time track­ing systems

The Judgment of 16 Octo­ber 2019 (Case No. 29 Ca 5451/19) was based on a com­plaint from an employee see­king the rem­oval of mul­ti­ple war­nings from his per­son­nel file. The­se war­nings had been issued by the employ­er becau­se the employee had refu­sed to use a time track­ing sys­tem with fin­ger­print ID after its intro­duc­tion by the employ­er. He also had not con­sen­ted to its use.

The Labor Court of Ber­lin found that the employee is not obli­ga­ted to use the time track­ing sys­tem. It ruled that the requi­re­ments for rem­oval of the war­nings, which can be reques­ted by an employee in accordance with §§ 242, 1004(1) Sen­tence 1 of the Civil Code, have been met in this case and orde­red the employ­er to remo­ve the warnings.

As grounds for its judgment, the court first cited the fact that the infor­ma­ti­on stored in the time track­ing sys­tem is bio­me­tric data in accordance with Artic­le 9(1) of the GDPR (PDF) and repres­ents spe­cial cate­go­ries of per­so­nal data in terms of § 26(3) of the Fede­ral Data Pro­tec­tion Act. The court rea­ched this con­clu­si­on based on the func­tio­ning of the time track­ing sys­tem. While the sys­tem does not store the employee’s com­ple­te fin­ger­print, only the minu­tiae, the lat­ter are indi­vi­du­al non-heritable ridge fea­tures which can be cle­ar­ly matched to the fingerprint.

Pro­ces­sing in the pre­sent case can­not be based on con­sent, as the employee had not con­sen­ted, or on a coll­ec­ti­ve bar­gai­ning agree­ment. The court the­r­e­fo­re exami­ned whe­ther pro­ces­sing might be jus­ti­fied based on § 26(1) of the Fede­ral Data Pro­tec­tion Act. After con­side­ring the employee’s inte­rests which merit pro­tec­tion in this case, the court con­cluded that fingerprint-based time track­ing repres­ents a sub­stan­ti­al inf­rin­ge­ment of the data subject’s fun­da­men­tal rights and free­doms. This inf­rin­ge­ment out­weighs the employer’s inte­rest in pre­ven­ting abu­se, cer­tain­ly in the absence of con­cre­te evi­dence that such abu­se has occur­red in the past or an expl­ana­ti­on of exis­ting gaps in alter­na­ti­ve time track­ing sys­tems which do not store bio­me­tric data. The employ­er in the pre­sent case fai­led to cite any such excep­ti­ons and the court the­r­e­fo­re found against the employer.

Unsur­pri­sin­gly, the Labor Court’s decis­i­on impo­ses strict requi­re­ments for the pro­ces­sing of bio­me­tric data by time track­ing sys­tems. While it does not find that bio­me­tric time track­ing sys­tems are unlawful per se, it requi­res valid reasons for using such a sys­tem, such as the occur­rence of abu­se in exis­ting sys­tems. In light of this ruling, com­pa­nies which use such sys­tems would be well-advised to clo­se­ly exami­ne the legal basis for use of the sys­tem. They should also exami­ne in this con­text whe­ther suf­fi­ci­ent tech­ni­cal and orga­niza­tio­nal mea­su­res have been imple­men­ted for pro­tec­tion of the data, the requi­re­ments for which are par­ti­cu­lar­ly high for bio­me­tric data.

Update of 27 August 2020

In its Judgment of 4 June 2020, the Dis­trict Labor Court of Berlin-Brandenburg issued an appel­la­te ruling on the use of bio­me­tric time track­ing sys­tems, in which it lar­ge­ly adopted the view of the tri­al court, the Labor Court of Ber­lin. Accor­din­gly, the appel­la­te court agreed that signi­fi­cant hurd­les have to be cle­ared befo­re bio­me­tric time track­ing sys­tems may be used. First, use of the sys­tem has to be “neces­sa­ry” in terms of § 26 of the Fede­ral Data Pro­tec­tion Act, an assess­ment which is to be made by weig­hing and balan­cing the employer’s inte­rest in pro­cess­sing the data against the employee’s right to pri­va­cy. Second­ly, sys­tems of this kind can­not be used if such use is oppo­sed by legi­ti­ma­te inte­rests of data sub­jects. In the pre­sent case, howe­ver, the employ­er was not even able to show that the sys­tem was necessary.”


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