Managers should know their employee salaries
I know what you earn - can the employer disclose the salaries?
Haufe-Online: Is it lawful for the employer to disclose the salaries of all employees and make them accessible to all?
Dr. Leif Hansen: For Germany, this question can be clearly answered in the negative. In Germany, the Federal Data Protection Act (BDSG) protects the informational self-determination of the individual very strongly. The collection, processing and use of personal data is only permissible under the Federal Data Protection Act to the extent that it is
- the Federal Data Protection Act allows this,
- another legal provision permits or orders this or
- the person concerned consents.
So this is a prohibition with reservation of permission. Any other data processing is inadmissible and violates the data secrecy regulated in § 5 BDSG.
If the employer posts the salary data on the bulletin board or otherwise publishes it in general, he uses this data - or, to use a data protection term, "transmits" it (publication is a particularly intensive form of "transmission"). This process is subject to the Federal Data Protection Act and is only permitted under the strict conditions mentioned above.
Haufe-Online: In which cases is the collection, processing and use of personal data permitted under the Federal Data Protection Act?
Dr. Leif Hansen: In the case of employee data, sections 32 and 28 of the Federal Data Protection Act (BDSG) can be considered as permitting standards. In addition, the employee can also consent to the use of his personal data.
Haufe-Online: Section 32 BDSG regulates the protection of employee data. What does this regulation say about it?
Dr. Leif Hansen: According to § 32 BDSG, personal data of an employee may only be used if this is necessary for the purposes of the employment relationship
- for the decision on the establishment of an employment relationship or
- after establishing the employment relationship for its implementation or termination.
There can be no question of this in the case of a general publication of the data. This is neither required for the establishment nor for the implementation of the employment relationship. Even the balancing of interests to be carried out would hardly ever speak in favor of a complete publication.
Haufe-Online: Can there be a legitimation of the general publication via § 28 BDSG?
Dr. Leif Hansen: A legitimation of the general publication via § 28 BDSG is also out of the question. According to this regulation, "the collection, storage, modification or transmission of personal data or their use as a means for the fulfillment of our own business purposes" is only permitted,
- if it is necessary for the establishment, implementation or termination of a business or legal obligation relationship with the person concerned,
- insofar as it is necessary to safeguard the responsible body's legitimate interests and does not conflict with a weighing of interests, or
- in special cases when the data is already generally accessible.
This permit standard is obviously not relevant either.
In the absence of other permit standards, it can therefore be stated that the publication of salary data in Germany, unlike in Sweden, is almost unthinkable. The publication of the salary data is not permitted if it is done without the consent of the employee concerned.
Haufe-Online: Can a company instruct its employees that it is not allowed to talk about salaries among colleagues? And what happens if someone does?
Dr. Leif Hansen: Whether or not it is permissible to exchange your own salary data when talking to colleagues depends initially on the individual employment contract. If this does not contain any regulations on this issue or only a general confidentiality clause on trade and business secrets, there is good reason to believe that employees are not subject to any restrictions with regard to the exchange of their own salary data. The general confidentiality clauses usually do not work in this area. According to the case law of the Federal Labor Court, wage and salary data are in themselves no trade or business secrets. According to the case law, this is only to be assessed differently if, as an exception, the wage and salary data are to be regarded as part of the business calculation of sales and profit opportunities. As a rule, however, this is hardly justifiable.
However, confidentiality clauses are often found in employment contracts that explicitly oblige employees to maintain strict secrecy about their remuneration. The effectiveness of such clauses has not yet been examined by the highest court. However, the state labor court of Mecklenburg-Western Pomerania ruled on October 21, 2010 (2 Sa 23/07) that an employment contract confidentiality clause, which obliges the employee to maintain secrecy about his remuneration, is ineffective because it unreasonably disadvantages the employee. The regional labor court argues that every employee must be able to speak freely about his or her salary, because the conversation itself is the only way to determine whether the employer is complying with the principle of equal treatment in terms of the wages. In addition, the contractual confidentiality agreement violates the fundamental right to freedom of association. This is because such a clause would prohibit the employee from disclosing his wages to the union. But if the union does not know the wage structure of a company, meaningful union activities are hardly possible. The regional labor court concludes from this that a corresponding confidentiality clause is not effective.
A completely different question is whether an employee of the HR department is allowed to talk "among colleagues" or in other circles ("at the regulars table") about salary data that he has come to know while working. This is not the case. As an employee of the personnel department, he is subject to data secrecy within the meaning of § 5 BDSG. The violation of data secrecy can be punished with severe fines or even imprisonment.
The legislator wants the employees concerned to be particularly aware of the sensitivity of their work and therefore obliges the employer in Section 5 of the Federal Data Protection Act to obligate these employees to observe data secrecy when they start their work. Corresponding declarations of commitment are therefore to be found regularly in these areas and should otherwise be made up quickly.
The interview leads Renate Fischer, Ass. Jur.
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