Labor impact of technological devices in France

AutorMarie Morin - Francis Kessler
CargoStudent, master 2 DPSE, University Paris 1. Trainee, Gide Loyrette Nouel, Paris - Prof. Sorbonne Law School, University Paris 1. Attorney, Senior counsel, Gide Loyrette Nouel, Paris
IUSLabor 2/2018 Marie Morin and Francis Kessler
Marie Morin
Student, master 2 DPSE, University Paris 1
Trainee, Gide Loyrette Nouel, Paris
Francis Kessler
Prof. Sorbonne Law School, University Paris 1
Attorney, Senior counsel, Gide Loyrette Nouel, Paris
Computers, smartphones, CCTV cameras, GPS systems, and biometric devices:
Technology is omnipresent in the workplace. As technology continues to develop,
employees' personal data is more regularly collected and potential threats to their
privacy become more commonplace. Four different aspects of the implications of
technological changes for work and employment can be differentiated: tasks and
occupations, conditions of work, conditions of employment and industrial relations
The control of the employees' activity, which results from the employer's management
powers and the employees' subordination, increased with the digital revolution and the
use of technological devices at work. Indeed, since 1990, technological devices and
their use at work constantly increased. In 2013, 71,1% of the employees used hardware
or a network for professional purposes2. The emergence of these technological devices
changed the scope of the employer's control. Today, the employer doest not only control
physically his employees' activity but he can control their activity through all these
technological devices such as computers or geolocation systems.
As software allow invisible control on computers, the employer can collect many
personal datas on employees, which is likely to violate their fundamental rights and
freedoms such as privacy and the secrecy of communication. The Court of cassation
ensures these fundamental rights, considering that “the employee has the right, even at
the time and place of work, to the respect of his pr ivacy, which implies in par ticular the
secrecy of communication3.
1 FERNANDEZ-MACIAS E., Automation, digitalisation and platforms: Implications for work and employment,
Eurofound, 24 May 2018.
2 DARES analysis, June 2018, n° 029.
3 Labour Division of the Court of cassation, 2 October 2001, n° 99-42.94 2.
IUSLabor 2/2018 Marie Morin and Francis Kessler
The use of mobile technological devices such as a mobile phone and a profesional
messaging is also related to an important workload which is likely to impinge on
4. To remedy this impingement, law n°2016-1088 of 8 August 2016 introduced
into the French labour code the right to disconnect from technological devices outside
working time in the French legal system, in order to ensure the employees the respect of
their rest times, leaves and personal and family life5.
The impact of the use of social media in the workplace has regularly given rise to
controversies and debates as how this subject is to be handled by a company’s
management. The current state of employment law is still not entirely settled in this
1. Is there any regulation in your country regarding employees’ use of
technological devices in the company?
In the French legal system, there is no specific regulation on employees' use of the
technological devices put at their disposal to render services.
As the employer has management powers, he can control his employees' activities
during working time. Unlike the employees' use of technological devices in the
company, the employer's control is regulated by the French legal system and case law.
The implementation of technological devices to control the employees' activity must
respect the following conditions to be lawful:
- Employees must be informed individually6.
- The workers representatives the Social and Economic Committee must be informed
and consulted7.
- The device must be declared to the National Commission for Data Processing and
On top of that, French case law applies the general principle of article L. 1121-1 of the
French Labour Code which states that “[n]o one can limit the people's rights a nd the
individual and collective freedoms in a way which would not be justified by the nature
of the task to perform and proportionate to the intended aim” to the control of the use of
technological devices in the company.
4 DARES analysis, June 2018, n° 029.
5 Law n°2016-1088, 8 August 2016, article 55.
6 French Labour Code, article L. 1222-4.
7 French Labour Code, article L. 2312-38.

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