Ercüment Erdem Att. Yesim Tokgoz

Employer’s Right to Govern and Personal Data Management

September 2017

In our previous article, we mentioned the need to protect private life and personal data, as almost everywhere is set up with cameras, as well as the method to provide this privacy within the scope of the Labor Law[1]. In this article, we shed light on the scope of employers’ rights to govern, and evaluated several systems that employers have implemented in order to regulate the code of conduct in their workplaces, in regard to breaches of employees’ private lives and personal data protection rights.

The Scope of Employers’ Rights to Govern

Through the dependency factor of employment contracts, employees have the duty of loyalty and are under the obligation to obey their employers’ instructions. As a result of these obligations, employers shall rule the workplace and form regulations in order to establish working conditions and environment. Employers create this organization as a result of their right to govern. Within this scope, for example, employers determine rules regarding workplaces’ entrances and exits, the usage of dressing rooms, parking, eating, resting places, sport halls, smoking areas, action plans in the case of emergency, etc. They can even forbid smoking[2]. However, all of these regulations cannot be against the Constitutional Law, mandatory rules of laws, provisions of collective and individual employment contracts, and workplace practices. In addition, they shall protect the health of their employees, safety of the workplace, with the intent to manage the workplace in line with the field of activity. Meanwhile, they may not breach the personal rights of their employees.

In accordance with established Court of Cassation decisions, the existence of provisions that grant employers the right to amend the working conditions in an employment contract means that the employers have extended their right to govern. To this end, employers gain the right to change the working conditions, such as the working place, within the scope of the employment contract without the employees’ consents. In addition, in extraordinary situations, or in the event of emergencies, the right to govern may be broadly interpreted. In these cases, employees can be instructed to work overtime and/or in missions other than their usual duties.

However, employers may not abuse this right by executing these contract provisions with the purpose to terminate the contract. This abuse will enable employees to seek remedies for termination without just cause. It should be emphasized that the courts are not competent to judge whether the decisions of the employers are feasible or not, as the employers may take the necessary precautions related to their business courses, and/or amend the working conditions to increase performance. Within this point, there is a very fine line between the right to govern and the amendment made in the working conditions without the obligation to obtain the employees’ consents[3]. The key part of this distinction is not to fundamentally change the previous situation of the employees, and/or not to aggravate their working conditions[4].

Employer’s Interference in their Employees’ Private Lives and Personal Data

Employees’ information, such as identity, address, occupation, criminal record, religion, political or union activities, health and disease status, fingerprint, telephone number, photos, electronic correspondences, etc., is deemed as personal data to be protected[5]. By the nature of the Labor Law, employers collect personal data and interfere in the private life of their employees during recruitment interviews, during working hours, or by supervising the performance of their employees through cameras placed in the workplace, by establishing security systems in order to reduce the risk of viruses, cyber-attacks, and/or by checking the points of entry/exit via x-ray. Normally, monitoring of assigned offices, e-mails, or looking inside of bags, etc. by private security guards, interfere in private life. Unless these acts are based on a legal ground, they will constitute a breach to Article 20 of the Constitution enacted respecting private life, and Article 17 of the Constitution enacted for the right of immunity. In order for employers to make such arrangements in legal bases within the framework of their right to govern, they must act with the purpose of fulfilling the obligation to protect their employees, and must have superior benefits. For instance, the search of employees and/or their belongings at the point of entry/exit is possible for reasonable cause, such as preventing the occurrence of possible theft pertaining to products produced in the subject factory. However, the search should be made in general, limited to a reasonable time, and in such a way that will not disturb the employees and damage their dignity[6]. To this context, employers may interfere in their employees’ private lives and personal data in return for their legally legitimate interests.

The regulations on Protection of Personal Data numbered 6698 also determines the conditions under which employers may use the personal data of their employees and, thus, limit interference in their employees’ private lives.

Health Check-ups

According to Law on Occupational Health and Safety Article 15, employers are obliged to ensure health check-ups at the employment and termination periods, at the time of job changes, and at the frequency determined according to the hazard class of the work. Employers are also obliged to maintain the reports taken based on these examinations in employees' personal files. Pertaining to the results of these check-ups, changing the work of an employee that is not suitable to his/her job anymore can be considered within the scope of employers’ rights to govern. However, this situation may not be abused according to the honest execution rule of the employment contract.

Using Fingerprint and Eye-Face Recognition Technologies

Fingerprints and eye-face recognition systems are frequently established to determine the time of entry/exit of employees, and/or to secure the workplaces. The establishment of these systems is within the scope of employers’ rights to govern; however, the employees must be informed of the systems and give their express consent. It should be reported to the employees the method and how long the employers will protect the collected data, and the employers shall ensure that the data will not be used in any other way in the future. The Council of State has decided that in the absence of such notifications, these control mechanisms would be contrary to the constitutional principle of proportionality. It is also important to take all necessary measures to ensure that such biometric data is not passed on to third parties, and the employees should be informed about this issue as well; otherwise, the risk of access by unauthorized persons to the databases where biometric data are stored may cause personal and material damages, as well as universal harm.

Inspection of E-mails and Telephones of Employees

The Court of Cassation confirms that employers have the authority to inspect the computers that they provide to their employees, and may terminate the employment contract if non-business activities are conducted on these computers, and if e-mails with insulting content to the employers are identified[7]. Within this context, it is inferred that the data stored in the computers provided by the employers is not personal and can be used by the employers without the employees’ consent.

On the other hand, listening to calls in work telephones is a contradictive issue. Listening to conversations is not accepted as legitimate; however, it is accepted that the telephones can be used for the purpose to determine the location of employees inside working hours.

It should be underlined that it is important that the employees must be informed in advance so that these inspections can be carried out.

Electronic Monitoring of the Workplace

Beyond a shadow of a doubt, much of the personal data of employees can be stored through cameras put in place by employers. In practice, employers may decide to monitor their workplaces through cameras within the scope of their management rights. In order that the employers install these systems using legal bases, they shall inform their employees and obtain their express consents. For this purpose, employees shall have been clearly informed regarding the aim and the method of the monitoring, as well as the period of time that the personal data will be maintained. In addition, the existence of a superior benefit, such as security of the workplace, immunity of domicile, protection of property right, and determination of the working hours of the employees should be examined. However, this should not be construed as the employers permanently monitoring the employees according to their wishes.

Moreover, the visual angle of the cameras should be limited to the places where employees work, and have a line of vision with the purpose of the field of action of the workplace. Otherwise, to capture all the movements of the employees in the premises, offices, all of the time may be evaluated as interference in their private lives.

Furthermore, a warning stating that the workplace is monitored by cameras shall be posted and clearly visible. Secret camera monitoring is not legally accepted. Finally, employers shall act in line with the equal treatment principle.

Thus, employers shall comply with their obligation to protect their employees by supervising the relationship between their employees, to determining any type of negative actions, such as threats and disturbances, as well as mobbing through the cameras.

Breach of the Right to Govern

Employees are not under the obligation to obey instructions that are against public order, law, ethics, and/or personal rights. If an employer terminates an employment contract due to improper orders that are beyond his/her right to govern, s/he will be faced with the employee seeking remedies for termination without just cause, invalid termination, and/or termination in bad faith. In the event of an abuse of the right to govern, employees shall be entitled to terminate their contracts with just cause and request compensation. In addition, it should be stated that if employers use their right to govern by breaching the principle of equal treatment, then it is possible that the said employer shall be levied with an administrative fine[8].

Conclusion

Employers fill the loopholes in the legislation, employment contracts, and workplace practices through their right to govern; however, they are not as independent as it may seem. Employers who wish to extend their right to govern should add provisions to the contracts regarding the fields they would like to move more freely in bearing in mind the limits of the legislation. In addition, they must respect their employees’ private lives and personal data while organizing working conditions and codes of conduct. Employers shall obtain the express consent of their employees before installing systems, within the scope of their right to govern, in order to protect their resources, avoid legal and criminal remedies, assess performances, and/or due to operational causes, legal responsibilities, confidentiality concerns, or their obligation to protect their employees, and shall inform their employees regarding the process. Otherwise, the applied systems would not have any basis in law, and may trigger the employers’ obligations thereunder.

[1] For detailed information please see: http://www.erdem-erdem.av.tr/publications/newsletter/protection-of-personal-data-within-the-scope-of-labor-law/ (Accessed on 05.10.2017).

[2] Prof. Dr. Sarper Süzek, İş Hukuku, 3. Bası, Beta Yayınları, İstanbul 2006.

[3] Please see the decision of General Chamber of Court of Cassation dated 12.04.2017, numbered 2014/7-2461 E., 2017/719 K. in the relevant matter.

[4] Please see the decision of 22nd Chamber of Court of Cassation dated 24.04.2017, numbered 2017/32194 E., 2017/9305 K. in the relevant matter.

[5] Prof. Dr. Sarper Süzek, İş Hukuku, 3. Bası, Beta Yayınları, İstanbul 2006.

[6] Prof. Dr. Ünal Narmanlıoğlu, İş Hukuku Ferdi İş İlişkileri I, Genişletilmiş 5. Baskı, Beta Yayınları, İstanbul 2014.

[7] For detailed information please see: http://www.erdem-erdem.av.tr/publications/law-post/employers-competence-of-email-supervision-and-right-of-termination/ (Accessed on 05.10.2017).

[8] Labor Law numbered 4827, Article 99.a.