FDPA Part 2 - § 26
Data processing for employment-related purposes
1Personal data of employees may be processed for employment-related purposes where necessary for hiring decisions or, after hiring, for carrying out or terminating the employment contract or to exercise or satisfy rights and obligations of employees’ representation laid down by law or by collective agreements or other agreements between the employer and staff council. 2Employees’ personal data may be processed to detect crimes only if there is a documented reason to believe the data subject has committed a crime while employed, the processing of such data is necessary to investigate the crime and is not outweighed by the data subject’s legitimate interest in not processing the data, and in particular the type and extent are not disproportionate to the reason.
- 1If personal data of employees are processed on the basis of consent, then the employee’s level of dependence in the employment relationship and the circumstances under which consent was given shall be taken into account in assessing whether such consent was freely given. 2Consent may be freely given in particular if it is associated with a legal or economic advantage for the employee, or if the employer and employee are pursuing the same interests. Consent has to be given in written or electronic form, unless a different form is appropriate because of special circumstances. The employer shall inform the employee in text form of the purpose of data processing and of the employee’s right to withdraw consent pursuant to Article 7 (3) of Regulation (EU) 2016/679.
- By derogation from Article 9 (1) of Regulation (EU) 2016/679, the processing of special categories of personal data as referred to in Article 9 (1) of Regulation (EU) 2016/679 for employment-related purposes shall be permitted if it is necessary to exercise rights or comply with legal obligations derived from labour law, social security and social protection law, and there is no reason to believe that the data subject has an overriding legitimate interest in not processing the data. Subsection 2 shall also apply to consent to the processing of special categories of personal data; consent must explicitly refer to these data. Section 22 (2) shall apply accordingly.
- The processing of personal data, including special categories of personal data of employees for employment-related purposes, shall be permitted on the basis of collective agreements. The negotiating partners shall comply with Article 88 (2) of Regulation (EU) 2016/679.
- The controller must take appropriate measures to ensure compliance in particular with the principles for processing personal data described in Article 5 of Regulation (EU) 2016/679.
- The rights of participation of staff councils shall remain unaffected.
- Subsections 1 to 6 shall also apply when personal data, including special categories of personal data, of employees are processed without forming or being intended to form part of a filing system.
- For the purposes of this Act, employees are
- dependently employed workers, including temporary workers contracted to the borrowing employer;
- persons employed for occupational training purposes;
- participants in benefits to take part in working life, in assessments of occupational aptitude or work trials (persons undergoing rehabilitation);
- persons employed in accredited workshops for persons with disabilities;
- volunteers working pursuant to the Youth Volunteer Service Act or the Federal Volunteer Service Act;
- persons who should be regarded as equivalent to dependently employed workers because of their economic dependence; these include persons working at home and their equivalents;
- federal civil servants, federal judges, military personnel and persons in the alternative civilian service.
Applicants for employment and persons whose employment has been terminated shall be regarded as employees.