Employees are increasingly working with digital and remote tools. Labor and personal data law protect them in the context of the performance of their employment contract.

As such, on January 16, 2020, the Ministry of Labor posted the Digital Labor Code online, allowing employees to find answers to their questions. Employees will find answers in particular about:

• teleworking (i),

• the right to disconnect (ii),

• the use of the Internet by an employee (iii),

• or even the possibility of monitoring an employee (iv).

i) The introduction of telework

French law has not established a right to telework but refers the parties to a possible negotiation on this subject.

The implementation of telework does not constitute a limit to the obligation on the employer to ensure the physical – and psychological – security of its employees. On the contrary, the employer remains subject to a best efforts security duty. Conversely, telework implies that the employer must ensure the security of its employees on a site which is not under its control – by definition – namely the home of its employee. Consequently, the employer is required to make its best efforts to protect them.

Whether the employee performs her work on the company’s premises or at home as part of teleworking, the employer is responsible for accidents occurring during working hours at the place of performance of the employment contract. It will therefore have to ensure the conformity of the accommodation.

The main difficulty in the execution of the work contract at home lies in the need for the employer to obtain prior authorization from the employee before visiting the place and to bring it into compliance. The teleworker retains a right to privacy at home. Thus, for example, it is unlikely that the room used by the teleworker will have an emergency exit (and even less that the teleworker will carry out the necessary work) when it is mandatory. It will therefore be necessary to opt for the execution of the employment contract in a compliant document.

The involvement of the employee in the compliance of her workspace can go as far as the application of the quality of project manager when she adapts her workspace. However, the adjustments must not represent any financial burden for the employee. The employer may therefore want to order an audit of the place of performance of the employment contract. Thus, the characteristics of the accommodation must be transcribed in a single document listing the risks in order to meet the requirements of consistency, convenience and traceability and must be updated annually.

Finally, employees must be trained in protective actions in order to protect themselves in their workplace. Employers must, through their disciplinary power, introduce obligations in this regard.

ii) The right to disconnect

The employer must be attentive to the psychological health of its employees and in particular teleworkers. Indeed, the feeling of isolation, the often reduced number of breaks, the possible lack of consideration created by the distance are among the risks on teleworkers’ mental health.

However, employers must protect mental health like physical health. They are thus advised to conclude a “psychological contract” with their employees. In this perspective, the employer must ensure that employees’ right to disconnect is respected. It is therefore bound by a duty to disconnect and detect risky situations. In practice, this can be done by suspending access to the servers at certain times.

The concrete application of the right to disconnect is not provided for by law but referred to internal negotiation within the company. The company charter must at least specify the procedures for exercising the right to disconnect as well as training and awareness-raising actions on the reasonable use of digital tools. In the absence of an agreement within the company, the employer defines the procedures for exercising the right to disconnection, ensuring that they are reasonable.

The right to disconnect aims to preserve the mental health of teleworkers by implementing receiver and transmitter measures.

The “receiver” measures can be in particular:

● The introduction of an absence of obligation to reply to a professional e-mail in the evening or on weekends.

● An automatic mention inserted in the body of the email reminding that late emails do not call for an immediate response.

● The use of the deferred sending function for sending late mails.

The “issuer” measures include in particular:

● The obligation to put an automatic answer of absence on his professional email.

iii) Use of the internet by the employee

The employer can limit Internet access to its employees. However, it is complicated to limit internet access too drastically. It is thus tolerated that the employee uses the Internet for personal purposes as long as the use remains reasonable, does not threaten the security of the company’s network and does not slow down her productivity.

The employer therefore has an interest in drafting a charter for its employees regulating the use of the Internet at work. However, even in the absence of a charter relating to the use of the Internet, the employee may be dismissed for misconduct when the use of the Internet is unreasonable.

iv) The implementation of employee monitoring measures

The employer can install a company video surveillance system to ensure the safety of people and goods. It is necessary to determine, prior to the installation of video surveillance, the objective of the video surveillance (security of persons, security of property, deterrence, identification of offenders, etc.).

Cameras must not film employees at their workstations, break rooms, union premises or toilets. A few exceptions to this principle have been recognized:

• Handling of money by the employee within the framework of his employment contract,

• Warehouse storing valuable goods.

Only persons expressly authorized by the employer and duly trained can view the videos. The employer must determine the retention period for the images, which must be related to the objective pursued by the video surveillance.

If the cameras are filming a place open to the public, prefectural authorization must be obtained.

In summary :

• It is good practice to draft a digital charter (providing in particular for the conditions for exercising telework, the right to disconnect and the use of the Internet) within the company (which will also provide for the right reflexes to have in order to preserve the computer security of the company),

• In the case of video surveillance, a special charter and marking must be provided within the company.

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