Labour Code (Code du travail), France: monitoring and CSE consultation

The CSE is informed and consulted, before the decision to implement them in the undertaking, on the means or techniques allowing control of employees' activity; L2312-37 item 1 lists the implementation of such means among the one-off consultations. This covers video surveillance, geolocation and vehicle telematics, badge and time clocks, call listening and recording, email and internet logging, screen capture, activity or keystroke software and productivity indicators. A device implemented without this consultation is unlawful, and failure to consult can constitute the offence of obstruction (L2317-1).

In undertakings of at least 50 employees, the CSE is informed and consulted on matters concerning the organisation, management and general running of the undertaking, including the introduction of new technologies and any significant change to health and safety or working conditions (item 4 of L2312-8 II), and on the environmental consequences of those measures (L2312-8 III). The CSE may appoint an expert on such projects (L2315-94 item 2, costs shared 80 percent employer and 20 percent CSE under L2315-80).

The employer's decisions are preceded by the consultation of the CSE (except before a public takeover bid under L2312-49). Draft collective agreements are not submitted to consultation. A monitoring project must therefore be presented to the CSE while it can still influence the decision, before any contract signature or deployment.

No information concerning an employee personally may be collected by a device ("dispositif") that has not first been brought to the employee's knowledge. This is the individual notice duty for every monitoring technology: video, geolocation, badge systems, call recording, IT and email logging, screen capture, keystroke or activity software. Evidence gathered through an undisclosed device is, in principle, not usable to justify a sanction.

An employee is expressly informed, before they are used, of the professional evaluation methods and techniques applied to them. The results are confidential. Evaluation methods and techniques must be relevant to the purpose pursued. Productivity scoring, call evaluation and dashboard indicators used to evaluate staff fall under this duty.

No information concerning a job candidate personally may be collected by a device ("dispositif") that has not first been brought to the candidate's knowledge. Covert collection, for example undisclosed background scraping, recorded interviews or tracking tools, is prohibited.

No one may restrict the rights of persons or individual and collective freedoms unless the restriction is justified by the nature of the task to be performed and proportionate to the aim pursued. Every monitoring device, rule or practice (video, geolocation, IT logging, call recording, time clocks, productivity indicators) must therefore be justified by the task and proportionate to its purpose; the courts derive from this article the employee's right to respect for private life at the workplace and during working time. The CNIL reads it as the first of three cumulative conditions for any activity-control device.