Special features for employees in IT law

Law firm for labor law in Kerpen, Cologne and Witten

Labor law | Strong partner for employees and employers

Special features for employees in IT law

Law firm for labor law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection

Many employees, without knowing it, are confronted with IT labor law issues due to the ongoing Corona pandemic (COVID-19) and the ongoing digitalization of society and the world of work. A currently very topical example of the interface between labor and IT law is the large-scale introduction of "home offices" in the everyday work of companies. Apart from this topic, however, many more aspects play a role in IT labor law, the combination of IT law and Labor law, play a role. Subsequently, we will give you an insight into the very special IT labor law.

Special features for employees in IT law, employee IT law, special features employee IT law, IT labor law, employee IT reuter

What is IT labor law?

Definition of the term IT labor law

But what exactly is IT labor law and what areas does it cover? As the name suggests, this area of law, or rather this combination of areas of law, is an intersection of labor law and information technology law. The "pure Labor law" basically comprises the totality of regulations governing the legal relations between employees and employers, and is subsequently subdivided into the disciplines of individual labor law and collective labor law (cf. § 10 FAO).

Individual employment law regulates the legal relationship between the employer and the individual. Employeescollective labor law is essentially found in collective bargaining law and works constitution law. IT or information technology law, on the other hand, is a relatively young field of law and comprises various sub-disciplines that are fundamentally related to information technologies.

Although IT law is not explicitly defined by law, the essential matters covered by IT law or information technology law can be found in Section 14k FAO. Even if this is not clear from § 10 FAO 14k FAO, labor law and IT law have a mutual influence on each other and may overlap in certain areas. IT labor law is understood as the consideration of information technology issues from the perspective of labor law and vice versa.

In addition to the aforementioned problems surrounding the large-scale introduction of "home offices" in companies, IT labor law also deals, among other things, with the drafting of contracts at the personnel level in the IT industry, the regulation of the protection of IT trade secrets when employees leave the company, the effectiveness and design of so-called waiting clauses and professional and poaching prohibitions in employment contracts in the IT industry, employee data protection and the regulation of the private use of IT equipment provided by the employer. Due to the dynamic nature of this area of law, however, it is not possible to provide an exhaustive list of the various sub-disciplines of IT employment law contained therein, and it is not intended to do so here in particular.

Introduction of the home office as part of IT labor law

Home office as part of IT labor law

Probably the most significant element of IT labor law at the present time is the introduction of "home offices" since the beginning of the Corona pandemic (COVID-19 pandemic) and the associated labor law peculiarities for employees. As is the case for many labor law problems, the employment contract concluded between the employee and the employer is initially decisive in such a case.

According to current case law, the employer cannot unilaterally base the arrangement of a home office on the right of direction under Section 106 sentence 1 GewO (LAG Berlin-Brandenburg, ruling dated November 14, 2018 - 17 Sa 562/18). As a mirror image of this, there was previously no obligation on the part of the employer to offer home office to the workforce unless this was provided for in the relevant employment contracts.

However, this has changed with the introduction of the new Corona Occupational Health and Safety Ordinance of January 21, 2020: Pursuant to Section 2 (4) of the Corona Occupational Health and Safety Ordinance, in the case of office work or comparable activities, the employer must offer employees the opportunity to perform these activities at home if there are no compelling operational reasons to the contrary.

In other words, if the employment contract does not provide for any other regulations and if an activity is performed that falls within the scope of Section 2 (4) of the Corona Occupational Health and Safety Ordinance and there are no compelling operational reasons to the contrary, there is a right to, but not necessarily an obligation to, a home office. What else employers and employees need to be aware of in the context of the home office can be found, among other things, in the FAQ of the Federal Ministry of Labor and Health on the new Corona Occupational Health and Safety Ordinance.

However, it is still up to the employer to decide exactly how work is performed in the home office. In particular, the employer must take organizational and technical measures to ensure compliance with statutory regulations - especially those relating to data protection (see in particular the recommendations on secure mobile working in the home office of the German Federal Office for Information Security).

Despite the changed backdrop, the applicability of the Occupational Health and Safety Act and the Working Hours Act remains unaffected - employees are therefore neither unprotected nor worse off than when they work conventionally on site at the company's premises.
In this context, further problems of IT labor law also arise: To what extent is it permissible to use the employee's private IT in the context of the home office and to what extent may the IT resources provided by the employer in the context of the home office be used for private purposes?

Special features for employees in IT law, employee IT law, special features employee IT law, IT labor law, employee IT reuter

The classic case - private use of IT at work

The private use of IT at work

A classic example of IT employment law that frequently occupies the labor courts is the private use - possibly in breach of duty - of the IT provided by the employer at the workplace, which often ends in a warning or termination. As is so often the case in Labor law - The employment contract initially determines whether the employee may use the IT available at the workplace for private purposes.

If the employment contract does not contain any express permission, it must usually be assumed that private use of IT at the workplace by the employee is not permitted. The situation is different if the employer tolerates the corresponding use of the company IT by the employee for private purposes. However, even if the employer tolerates the use of company IT for private purposes or such use is provided for in a limited manner in the employment contract, the permissible level of private use may be exceeded in individual cases.

However, a precise determination of the permissibility of private use of company IT cannot be made here, as this depends on the circumstances of the individual case - in particular on the relevant employment contracts and the other company arrangements.

According to case law, breaches of duty under the employment contract in this context include the breach of the original duty to perform under the employment contract by failing to perform the contractually owed work during the private use of the IT provided by the employer, unauthorized downloading (whether because of the risk to the employer's IT systems from viruses or possible damage to the employer's reputation due to the criminal relevance of the downloaded material) and the incurring of costs at the expense of the employer through the private use of company IT resources (thus the BAG, judgment of 7. 7. 2005 - 2 AZR 581/04 ).

Our consulting offer

As a law firm specializing in labor and IT law, we offer comprehensive advice - from the legally secure drafting of employment contracts in the IT industry to the development of home office concepts, taking into account legal, in particular data protection regulations - both on the employer and employee side.

Do you need legal support from a lawyer for labor law and IT law?

Then contact us

+49 (0) 2273 - 40 68 504

info@kanzlei-baumfalk.de

Law firm for labor law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection