Privacy & Cybersecurity Law Blog

On November 3, 2011, the Labor Chamber of the French Court of Cassation (the “Court”) upheld a decision against a company that unlawfully used a geolocation device to track the company car of one of its salesmen. Although the company notified the salesman that a geolocation device would be used to optimize productivity by analyzing the time he spent on business trips, the device was in fact used to monitor his working hours, which ultimately led to a pay cut.

According to the French Labor Code, any restrictions to the rights and freedoms of employees must either be justified by the nature of the assignment or proportionate to the intended purpose. Employers also must give employees advance notice before using any device to collect personal information about them.

The Court ruled that the use of a geolocation device to monitor the activities of employees is lawful only if such monitoring cannot be conducted by other means. In this case, the Court found that the use of a geolocation device to monitor the salesman’s time on the clock was unjustified since his employment contract allowed him to determine his own schedule as long as he submitted a detailed daily report of his activities to his employer.

The use of a geolocation device also constitutes a data processing activity for which companies must file a registration with the French Data Protection Authority (the “CNIL”). Pursuant to the French Data Protection Act, personal data must be collected for specified, explicit and legitimate purposes, and may not subsequently be processed in a manner that is incompatible with those purposes. In this case, the Court determined that the company had misused the geolocation device, and had failed to inform the CNIL and provide proper notice to its employees about its purposes for using the device. The CNIL’s 2006 recommendation on the use of geolocation devices provides additional information about how such devices may be used by employers in France.

Read the Court’s decision (in French).

Read a previous post about a different French court case addressing the issue of employee monitoring via GPS.