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As an employer, you have a legal obligation to respect your employees’ privacy. This means setting reasonable limits and not intruding into their private lives. Failing to respect your employees’ rights to privacy can not only result in a legal action but also negatively impact your workplace productivity and environment. This article explains your obligations as an employer in New Zealand to maintain workplace confidentiality, such as:

  • managing the collection, maintenance and security of personal data;
  • monitoring your employees while at work;
  • contacting employees outside of work hours; and 
  • protecting the data of job applicants.

How to Manage the Collection of Personal Data at Work

As an employer, you can collect personal information about your employees as long as: 

  • you have a valid work-related purpose, such as payroll; or 
  • you are following the law. 

Your employment agreement and policies should explain what information you collect and what you will be using that information for, as well as any disciplinary actions that you may take if someone breaches it. You should also develop processes and provide training to inform everyone in your workplace on how to collect and manage private data. 

Your legal obligations in regards to the private information you collect from your employees include: 

  • protecting its confidentiality; 
  • preventing its disclosure; 
  • using it for its intended purposes; and
  • allowing your employees to access it if they ask.

If your employees request access to their personal files, you must either give them access or explain why they cannot see it. You must provide access as soon as possible and within twenty working days. If you cannot meet this timeframe, you can ask for an extension.

Can You Monitor Your Employees During Work?

Installing cameras or other software to monitor your employees during work hours should be your last resource, as this can negatively impact your employees’ morale and productivity. However, there are instances in which you might decide it is necessary, such as to protect staff or to minimise theft. Occasionally, you may monitor an employee without them knowing, for example, if you suspect they are  stealing. However, you should always approach this carefully to avoid legal action.

You must set a policy that explains when and why you monitor your employees and ensure that it complies with the Employment Relations Act 2000 and the Privacy Act. Further, you should take practical steps to make your employees aware of this policy before you start monitoring them and explain why it is necessary. Your employees have the right to discuss this policy with you and involve their union. 

If you have a genuine reason to monitor how your employees use their devices and the internet, you need to clearly explain your expectations and how you will monitor their usage.

If you collect information by recording your employees’ activity, you must meet several obligations under the Privacy Act, such as: 

  • how to secure this data, 
  • ensuring that it is accurate before relying on it; 
  • you should only keep it while required;
  • you can only use it for the purpose you collected it for; 
  • the circumstances in which you may disclose this information; 
  • allowing your employees to access it; and 
  • correcting this information on your employees’ request.

Can You Contact Your Employees During Non-Work Hours

You should only contact your employees outside work hours if it is necessary. For example, some acceptable scenarios include if: 

  • there is an emergency; or
  • your employee is:
    • on call or working from home;
    • on sick or garden paid leave, or if you need to consult them as part of a change process while they are on annual holidays or parental leave;
    • absent and has not given you a valid reason; or
    • has received a suspension.

Data Protection During the Hiring Process

When hiring new employees, you need to protect the privacy of the job applicants’ personal information, and you cannot ask them questions that indicate an intention to discriminate. Some inappropriate questions include:

  • do you have any disabilities, 
  • are you pregnant; or 
  • are you planning to have children?

However, you can ask a job applicant if there is anything that would prevent them from carrying out the full duties of the job. You also need to let them know if you are conducting background checks, such as contacting their former or current employer.

Key Takeaways 

Throughout the employment processes, such as hiring, managing payroll and performance and exiting, you will need to collect and maintain sensitive information about your employees. Hence, it is essential to understand your obligations under New Zealand law, including: 

  • having a valid work-related purpose for the information you collect, for example, managing payroll, and using it for its intended purpose;
  • not disclosing any private information about your employees;
  • protecting the confidentiality of this information, for example, developing a confidentiality policy and processes; 
  • allowing your employees to access it and correct it if they ask; 
  • acting in good faith and following the law if you need to monitor your employees; and 
  • not asking discriminatory questions to a job applicant during your recruitment process.

If you need help understanding your legal obligations to protect your employees’ information or drafting a confidentiality clause or policy, LegalVision’s employment lawyers can help. Call 0800 005 570 or fill out the form on this page.

Frequently Asked Questions

Why is confidentiality important in the workplace?

Under New Zealand law, you must maintain confidentiality in your workplace. However, this is also important from a business perspective as it helps to show your customers and employees a standard level of courtesy by protecting their data.

What are the ways employers can protect confidentiality in the workplace?

You can protect confidentiality in your workplace by developing policies and processes to collect and maintain your employees’ private data and other confidential information. For example, you should add a confidentiality clause to your employment agreements. This ensures that employees understand their rights and obligations to protect the privacy of data, provide regular training to all your staff and develop an employee exit procedure.

What can you not ask on an employment application?

As an employer, you cannot ask questions throughout the recruitment process that could lead to discrimination of the job applicant, such as age, marital status, race, political views or religion-related questions. You can ask a job applicant if there is anything that would prevent them from carrying out the full duties of the job, but you cannot specifically ask whether they have any disabilities, mental health issues or are planning to get pregnant.

Can you watch your employees on camera all day?

In some instances, you might decide it is necessary to monitor an employee by using a hidden camera or other monitoring software. Still, you should approach this carefully and act in good faith and follow New Zealand privacy laws. For example, you need to have a valid reason for monitoring your employees, such as if you suspect that they may be stealing.

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