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What GDPR Means For Employee Data
Published on August 10, 2021 AUTHOR - Privacy Research Team
Table of contents
- What is the EU’s GDPR
- Lawfulness of processing
- Principles relating to processing of personal data
- Data protection by design and by default
- Data protection impact assessment (DPIA)
- Records of processing activities
- Personal data breach notification
- Data sharing with third parties
- Cross-border data transfers
- Data subjects’ rights
- Specific member states’ rules
- Operationalizing the GDPR
What is the EU’s GDPR
The European Union’s General Data Protection Regulation (GDPR) is designed to protect European Union’s residents in relation to the processing of their personal data. It treats natural persons including consumers as well as employees equally and grants them several rights and safeguards.
This article provides a complete guide to the Human Resource Management team of an organization aiming to comply with the GDPR. Let’s first look into some of the key provisions of the GDPR that a Human Resources Management team must consider while handling employees’ personal data:
Lawfulness of processing
As per Article 6 of the GDPR, data controllers must have a legal basis to process personal data. For most data processing happening under workplace circumstances, the legal basis cannot be the employee’s consent because of the imbalance of power between an employer and employee. The employee may worry that his/her refusal to consent may have severe negative consequences on his/her employment relationship. As a result, the employee’s consent cannot be considered to be freely given.
Employers can rely on an employee's consent only in very few exceptional circumstances such as to retain job applicant’s data for future roles as there are no adverse consequences on the employment relationship for refusal. Such consent must be freely given, specific, informed, unambiguous and documented.
However, in the context of work , employers should rely on other lawful bases as indicated in Article 6 of the GDPR. The most common legal bases relied upon by employers are the performance of the employment contract, the legitimate interests of the employer, and the compliance with a legal obligation to which the employer is subject. Employers must apply the principles of proportionality and subsidiarity regardless of the applicable legal basis for processing employees’ personal 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.
Securiti can help organizations map data to their owners, create privacy notices and incorporate sensitive data intelligence to ensure that all data protection principles are complied with.
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.
Securiti can help organizations map data to their owners, create privacy notices and incorporate data intelligence in an automated fashion to help organizations achieve privacy compliance across all data processing activities and projects.
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.
Securiti incorporates AI to enable Assessment Automation (PIAs, DPIAs, Readiness Assessments, Transfer Impact Assessments) to trigger and conduct risk-based assessments.
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.
Securiti’s Data Breach Management Solution swiftly identifies compromised data and impacted data subjects in a security incident. It utilizes built-in privacy research to help organizations deliver breach notifications within hours of a security incident.
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.
Securiti’s Vendor Management Solution allows organizations to assess their vendors based on a predefined risk score and also offers a centralized process to assess how compliant the third-party vendors are with the GDPR.
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.
Securiti offers an all-encompassing and comprehensive Schrems-II solution to enable companies to conduct effective cross-border data transfer risk assessments, identify and review data transfers from the EU and remediate discovered vendor risks.
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 to automated individual decision-making including profiling
Employers are required to fulfill the DSR requests of their employees within stipulated deadlines.
Securiti offers the DSR Automation Solution to help organizations honor all rights and simplify the process of exercising these rights. This process turns manual work into an automated system that will help enterprises swiftly process data subject requests and enable coordination between stakeholders for reviews and approvals.
Specific member states’ rules
As per Article 88 of the GDPR, member states may provide for more specific rules with respect to the processing of employees’ personal data. Therefore, employers must also look into national and local employment laws relevant to their jurisdiction while handling employees’ personal data.
Operationalizing the GDPR
HR Management must meet the requirements of the afore-mentioned provisions of the GDPR. To achieve compliance, organizations need to operationalize their processes.
This can be done in the following ways:
- Disclose how you collect, process, retain, share, and process employees’ data through transparent formal policies.
- Develop formal policies and procedures for the collection and handling of employees’ data.
- Update privacy policies as needed and share with all employees as well as consumers.
- Ensure privacy policies and notices are easily accessible and understandable to your workforce as well as incorporated in your employees’ handbooks.
- Review and update your processes.
- Maintain proper documentation with regards to your employees’ personal data.
Performing these tasks through manual methods can increase the risk of human error, not to mention the time and money to complete them. Organizations are advised to incorporate automation that can simplify and speed up the compliance process.
Securiti’s Sensitive Data Intelligence Solution can help your organization to discover, analyze, and protect large datasets. It offers you a 360 solution to all your compliance needs. See a demo of our Sensitive Data Intelligence solution and let Securiti help you on your road to GDPR compliance.
Securiti also offers automated data mapping, DSR rights fulfillment, data breach management and security controls to help you comply with the obligations required by the GDPR.
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