Laudator: Prof. Dr. Peter Wedde

The BigBrotherAward 2013 in the “Workplace” Category is jointly given to

Amazon Logistik in Bad Hersfeld, and Amazon Koblenz GmbH.

These two companies receive the BigBrotherAward 2015 because they demand from their employees that they give up legally guaranteed protections of their most private data – particularly those concerning the sensitive issue of health – at the company gate. Amazon does not access these data highhandedly. On the contrary, they even extract a signature as an expression of “voluntary” consent from their employees. They may think they have everything covered. But they have fully earned themselves a BigBrotherAward this way.

People who wish to work in one of these Amazon subsidiaries are handed a declaration of consent to sign together with their employment contract. A passage in this paper states:

“The collection of data is directly linked to the processing and handling of obligations resulting from the employment relationship, as defined in § 28, section 1, sentence 1 of the Data Protection Act (Bundesdatenschutzgesetz, BDSG).

I therefore declare my consent to the automated processing and use of the personal data I submit, including data about my health (§§ 4, 4a BDSG), and to the transfer of these data to a central database in the US to be processed and used. The use of these data is therefore in accordance with the rules of German data protection law.”

Sounds pretty harmless at first. It all seems to follow the law, after all it’s full of paragraphs and all in black on white. But at a second glance, the quoted legal texts appear quite different. Since autumn 2009, for more than five years(!), § 28 sect. 1 sentence 1, BDSG does not apply to employment contracts any more! Note to whom it may concern at Amazon: Using your own distribution services, you can order an up-to-date copy with commentary of the German Data Protection Act. In it you will find that the paragraph to apply to employment contracts since 2009 is no longer § 28 but the new § 32.

Using the wrong paragraph as a legal basis is enough to raise significant doubts about the validity of this declaration of consent. But there is another missing factor: the law proscribes that the use of data processing must be laid out in detail and that employees must be informed about this. A pale referral to the “rules of German data protection law” is not enough.

But maybe it was a very different part of the quote above that really alarmed you. The data on German employees will be processed and used in the US? Just like that? Wasn’t there a thing that required approval by the EU for this kind of transfer? Yes, there would be a strict need for an EU standard contract, for example. There is not a word about this in the declaration that is handed out for signing. Whether such an arrangement exists remains unclear for potential applicants.

There might be an argument that all this could be tolerable with respect to address, date of birth and other such data contained in an employment contract. But when it comes to health data, in particular when there are no specifications for processing and use, a red line is crossed. German data protection and employment law will only allow the collection, processing and use of such data in cases defined by the law – to administrate sick pay, for example. Any further use of these data violates personal rights and is therefore inadmissible. But it doesn’t stop there:

In § 5, section 3 of their employment contracts, the Amazon subsidiaries express even further interest in their employees’ health data, and this clearly exceeds normal bounds:

“If there is reason to doubt the employee’s inability to work, the company has the right to require a medical examination by a doctor nominated by the company, at its own cost.”

Employment law provides no legal basis for such a rule. This infringes the right to freely choose a medical practitioner and is therefore a massive violation of the employees’ personal rights. As defined by § 275 of the German Social Security Act, Volume 5 (SGB V), it is the task of the health insurances’ trusted medical consultants to examine employees if there are doubts about their inability to work, and nobody else’s. It is no business of the company doctors either, whom § 5 section 4 of Amazon’s employment contracts refers to:

“During their period of employment, employees are obliged to let themselves be examined for health-wise aptitude […] by the employer’s company doctor. In accord with the employee, the company doctor is permitted to inform the employer about the result of the examination, if and as far as the result amounts to a restriction of their aptitude.”

This agreement, which employees are required to sign if they want to work at one of these Amazon subsidiaries, is kept in such general terms that if effectively breaks patient–physician confidentiality, at any time and without need for any explanation. Employers simply cannot demand this kind of disclosure from their employees.

Of course nobody is compelled to sign such declarations of consent. Everyone is free not to work at Amazon if they disagree with such rules. But when it comes to industrial relations, there are grave doubts whether the necessary voluntariness can in fact be assumed. After all, when it comes to a job the motto is mostly “sink or swim” rather than “Okay then, I think I’ll look for a different job.”

To the Amazon subsidiaries – and we presume that more Amazon businesses are implementing such rules, as the contracts and declarations we have seen are standardised templates – we can only give the following, most urgent advice: they should forget the “declarations of consent” that they have been using up to now, and stop processing employees’ data in the United States.

Congratulations on the BigBrotherAward to the Amazon subsidiaries in Bad Hersfeld and Koblenz.

[Bild oben: Dominik Müller, cc-by-3.0]

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