What GDPR Means For Employee Data

Principles relating to processing of personal data

Article 5 of the GDPR sets out 7 key data protection principles that all data controllers need to abide by. These data protection principles are:

• Lawfulness, fairness and transparency
• Purpose Limitation
• Data Minimization
• Accuracy
• Storage Limitation
• Integrity and confidentiality
• Accountability

The employer must ensure complete compliance with all of the above-mentioned data protection principles when it comes to handling employees’ personal data. This would include employers’ obligation to notify its employees of the existence of any monitoring activity (or any surveillance if carried out), the purposes for which the personal data is to be processed for and any other information necessary to guarantee fair processing.

Data protection by design and by default

Article 25 of the GDPR requires employers to implement the principles of data protection "by design and default" in all data processing activities and projects. As an example, where an employer issues devices to employees, the most privacy-friendly solutions should be selected if tracking technologies are involved. Data minimization must also be taken into account.

Data protection impact assessment (DPIA)

Article 35 of the GDPR requires data controllers to conduct data protection impact assessments where data processing is likely to result in a high risk to data subjects. In an employment context, the employer must carry out a DPIA before using new technologies or where data processing is likely to result in a high risk to the fundamental rights and freedoms of employees.

A DPIA is necessary for the following situations:

(1) Systematic and extensive evaluation of personal data or profiling.
(2) Processing on a large scale of personal data relating to criminal convictions and offences.
(3) Systematic monitoring of publicly accessible areas on a large scale.
(4) The use of newer technologies and biometric procedures.

Records of processing activities

As per Article 30 of the GDPR, the employer must maintain records of data processing activities under its responsibility. This obligation does not apply to enterprises employing fewer than 250 persons unless the processing it carries is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data or relates to criminal convictions and offences.

These records can be audited at any time to see if the organization is compliant with the GDPR.

Personal data breach notification

As per Articles 33 and 34 of the GDPR, employers must notify personal data breaches to the regulatory authority where a breach is likely to result in a risk to the rights and freedoms of employees. They must notify not later than 72 hours after having become aware of the breach. Where such risk is high, the employer must notify impacted employees without undue delay.

Data sharing with third parties

While sharing an employee's personal data with external third parties and vendors such as HR services, security contractors or medical insurance services, etc, the employer must assess their privacy practices and their third-party/vendor’s compliance with GDPR’s requirements. It is best practice to have contractual agreements containing safeguards for the protection of the transferred data.

Cross-border data transfers

Given cross-border data protection requirements in the GDPR (Article 44 to 50), companies must ensure that personal data transfers to a third country outside the EU take place only where an adequate level of protection is ensured and that the data shared outside the EU and subsequent access by other entities within the group remains minimally necessary for the intended purposes.

Data subjects’ rights

As per Articles 12 to 23 of the GDPR, an employee has the following rights in relation to his/her personal data:

(1) Right to Information
(2) Right of Access
(3) Right to rectification
(4) Right to erasure
(5) Right to restriction of processing
(6) Right to data portability
(7) Right to object
(8) Right not to be subject to automated decision-making.

Employers are required to fulfill the DSR requests of their employees within stipulated deadlines.

Frequently Asked Questions (FAQs)