IMO a business/manager cannot get "consent" from an employee because that employee is always under threat of being fired. Any consent given should be considered under duress, e.g. not actually consent.
A quick search also yielded this:
https://commission.europa.eu/law/law-topic/data-protection/r...
I'd like to think it's not controversial but I'm surprised at how often it seems to be overlooked for workplace romances as well.
I'm trying to follow the thread, are you saying that people who don't want to have every mouse click tracked or their private home network, outside the work VPN searched, are behaving in an entitled manor?
It’s not about entitlement, justice or any of that. This is capitalism.
It is about raw power and pragmatism and what one can get away with. When the employee has the upper hand as in a hot market, they have some wiggle room. When the employer has the upper hand, the landscape shifts accordingly.
Unions are unpopular in our industry, but are typically how employees in most sectors have increased their power.
Employer cartels and the state are how employers increase theirs.
Adam Smith covered it all about 250 years ago in the Wealth of Nations, a fantastic read if you can stomach the archaic writing style.
It may be different if it's gathered during the hiring process. The earlier, the more likely it is to make a difference.
But just to point it out: on many countries employers do not need consent, often they just need acknowledgement. That one they can get, by doing exactly the things that are on the article.
I would be much more likely to agree with you if the employer came out and said "here's the new policy, it's being implemented in 6 months. On this date 6 months in the future, you need to sign this form or you're out." That gives you time to make other arrangements, get independent review of the policy, whatever you want.
Like how an employee accounts for 1/n of an employer's work capacity (where n can often be large), but an employer typically accounts for 100% of an employee's income.
Or how an employer can often delay completing whatever task a particular employee was doing with minimal consequences, but if an employee skips paying rent or other bills then they can get stuck with late fees that are a non-trivial fraction of the actual bills, which they already have trouble paying. And you can't skip buying food for a month and make it up next month.
Or how the need to pay for food and rent means that even employers that are widely known to be terrible can often find new employees to take up the slack from somewhere no matter what their turnover rate, but employees who have any kind of negative reputation, or are seen to move jobs "too quickly", can find it hard to find employment again.
I find "Work is a bilateral voluntary arrangement" where "No one is under duress" to be an overly-reductive-to-the-point-of-naiveté position.
> Like how an employee accounts for 1/n of an employer's work capacity (where n can often be large), but an employer typically accounts for 100% of an employee's income.
The employer needs 100% of that employee's work, or they wouldn't pay for it. Conversely to your point, the employer may very much struggle to replace an employee, and an employee may have various other employers to choose from.
Of course there are jobs where this is less the case, and there are jobs where this is more the case. I'm not assuming that all jobs are like this, but I don't think we should be assuming zero (or vanishingly few) jobs are like this.
If that were the case, employers would go bankrupt, or at least descend into chaos, whenever anyone took a sick day.
> the employer may very much struggle to replace an employee, and an employee may have various other employers to choose from. [...] but I don't think we should be assuming zero (or vanishingly few) jobs are like this.
OK, then; if not vanishingly few, how many? Out of the roughly 130 million full-time jobs in America, do you want to give a ballpark figure for what percentage of those jobs you think an employer will struggle to cover or get by without in the immediate term, and replace within (say) four-to-six weeks, and would suffer significant effects on their business if that employee disappeared tomorrow?
You can't offer a salary below minimum wage even if both parties agree. You can't have people work hours above a certain limit even if both parties agree. And (at least in EU) in the exact same manner you can't have take-it-or-leave monitoring of all employees even if both parties agree.
Such monitoring may be permissible with genuine 'freely given consent' if it was given without any expectation of terminating the relation or any other adverse consequences or differential treatment. If you say "I'll give you $100 if you consent", the employee can agree, but that doesn't count as valid consent or binding contract and doesn't permit you to do the thing with that employee's data, privacy rights aren't for sale even if people would want to sell them. And you might get consent from some of the employees, but IMHO there isn't (and shouldn't) be any EU-legal way to ensure that you get consent from everyone, because if you do, that's a good sign that's not "valid consent" as defined by EU law, that it wasn't freely given but conditional or coerced.
A good analogy for how consent and privacy is handled in Europe (not in USA though) IMHO is like consent to sexual acts; if in an otherwise identical situation consent given in that manner wouldn't be appropriate to violate someones asshole, chances are that consent wouldn't be valid also for violating their privacy; If part of employment contract or company policies says "I consent to my manager arbitrarily monitoring me" it is about as legally binding as it saying "I consent to my manager arbitrarily fucking me", i.e. just empty words.
Yes - illegal things are illegal, of course. I can pay someone $1 to kill someone as a freely arrived at agreement, but that's illegal. What I was saying is orthoganal to legality. It's about whether or not the employer-employee relationship is 100% coercive.
E.g. PriceWaterhouseCoopers was fined for unlawful handling employee data despite having having the employees "agree" to it (https://www.lexology.com/library/detail.aspx?g=9a315cca-bc71...), and the "consent" being in the employee handbook effectively was an additional violation "PwC had processed the personal data in an unfair and transparent manner, by giving the false impression that it was relying on consent".
For resolving such issues, quoting that article, "the EDPB/ICO guidelines stipulate that in an employment context, consent cannot be given freely as there is most likely an imbalance of power between the employer and the employee".
It could be that in some particular scenario the relationship wasn't coercive at all and the consent is valid, but it would be up to the employer to demonstrate that, and if somehow 100% of employees consented to monitoring, it could be very, very difficult for the employer to demonstrate that no "motivation" (positive or negative) was involved and everyone really just loves being monitored as a pure coincidence.
True equality in any relationship between different humans is almost impossible. There are always differences where one person has more privilege or advantages than the other, and that includes hierarchy, but it also may be caste, religion, race, gender, sexual orientation, etc. It cannot be avoided that sometimes two people need to engage in a consent agreement and both of them are not considered "equals". Yet it's still important, perhaps more so, to seek that consent, and respect the denial of it. We shouldn't discount that consent agreement just because the two have an uneven power dynamic, because that will always be there.
If on the other hand, an employee has a specific case and evidence for why they are being intimidated, a judge and jury could decide if the extenuating circumstances warrant nullifying a consent agreement. That's basically how things like sexual assault cases are handled. The same logic would apply to business consent agreements.
The real difficulty is evidence. Always keep evidence of your treatment at work. Tell other people, send emails, confirm details after calls that you can't legally record.