Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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Recording of Video Surveillance Admissible in Court

Precedential Decision by Judiciary or Regulatory Agency

Author: Kim Kleinert, Associate – vangard | Littler

In a recent ruling, the Federal Labor Court (Bundesarbeitsgericht) held that even unauthorized video recordings on the company premises can be used as evidence in court. In the case at hand, an employee had left the factory premises before the start of the shift and nevertheless received wages for the entire shift. The employer dismissed the employee without notice after an anonymous tip-off had led the employer to the evidence captured by surveillance video camera installed at the gate of the premises.

The court noted that if the employer monitors the workplace with a video camera and informs the employee of this by means of signs, the video recording can be used as evidence of misconduct in an unfair dismissal case. This also applies if the surveillance violates data protection law.

Are Works Council Agreements an Adequate Legal Basis for the Processing of Employees' Personal Data?

Precedential Decision by Judiciary or Regulatory Agency

Authors: Dr. Rajko Herrmann, Partner, and Christina Stogov, LL.M. (Münster), Senior Associate – vangard | Littler

In ECJ Case C-65/23, the European Court of Justice is being asked to rule on whether legislation and/or collective agreements in the member states can lower the standard of data protection established by the GDPR. Specifically, the ECJ must answer six questions on the interpretation of Art. 88 of the GDPR that allows member states to set data protection rules for employees.

This question has been raised in a case where an employer concluded a works agreement with its works council on the use of an IT tool to process employment-related data, which involved data transfer to the U.S. The data processing did not comply with the GDPR data protection principle that “data processing must be necessary.” Therefore, the Federal Labor Court currently is considering the obligation of employers, as data protection controllers, to comply with all GDPR requirements despite a works agreement for the use of the IT tool. A decision by the ECJ can be predicted for the middle of next year.

Transfer of Personal Data from Europe to the U.S.

Important Action by Regulatory Agency

Authors: Christina Stogov, LL.M. (Münster), Senior Associate, and Dr. Rajko Herrmann, Partner – vangard | Littler

On September 4, 2023, the Conference of the Independent Data Protection Authorities of Germany (Datenschutzkonferenz or DSK) published guidance on the new adequacy decision that the European Commission adopted on July 10, 2023, for the EU-US Data Privacy Framework (DPF). The DSK is a body of independent German data protection authorities (DPAs). The DPAs in Germany rely on the guidance issued by the DSK.

In its guidance, the DSK noted that transfers from controllers or processors in the EU to U.S. recipients who are not certified under the DPF can take place only if standard data protection clauses are used to provide a level of protection that is equivalent in substance to that guaranteed in the EU. In this context, the DSK points out that the assessments made by the EU Commission in the adequacy decision can be considered for the transfer impact assessment (part of the standard contractual clauses).

Managing Directors Not Liable for Non-Payment of Minimum Wage

Precedential Decision by Judiciary or Regulatory Agency

Author: Dr. Stefanie Reiche, Senior Associate – vangard | Littler

On July 22, 2023, the Federal Labor Court published decision Ref. No. 8 AZR 120/22, on the liability of managing directors for claims brought by employees. In that case, an employee filed a lawsuit under tort law, seeking to recover damages from two managing directors of an insolvent company for nonpayment of the minimum wage. The court ruled that the managing directors were not personally liable under tort law.

The court reasoned that while it is true that managing directors can be personally liable under the law for civil penalties for non-payment of the minimum wage, this does not lead to liability under tort law. Moreover, the liability system under corporate law only provides for internal liability for managing directors vis-à-vis the company. In principle, there is no personal liability to third parties and a managing director is personally liable for the company’s obligations only in exceptional cases. The provisions of the Minimum Wage Act do not constitute such an exceptional case, even when combined with the civil law. Liability is therefore limited to the company and its assets. However, managing directors can still be personally liable under tort law in cases of breach of trust, withholding of social security contributions and delay in filing for insolvency.