§ 23 HDSIG
Data Processing for Purposes of the Employment Relationship
(1)Personal data of employees may be processed for purposes of the employment relationship where this is necessary for decisions on the establishment of an employment relationship, or after the establishment of the employment relationship for its performance, termination or settlement, as well as for the conduct of internal planning, organisational, social and personnel measures. This shall also apply for exercising or fulfilling the rights and obligations of the employee representation arising from a law or a collective agreement, a works council agreement or a service agreement (collective agreement). For the purpose of detecting criminal offences, personal data of employees may only be processed if documented factual indications substantiate the suspicion that the data subject has committed a criminal offence in the course of the employment relationship, the processing is necessary for detecting the offence and the legitimate interest of the employee in the exclusion of the processing does not prevail, in particular the nature and extent are not disproportionate in relation to the cause.
(2)Where the processing of personal data of employees is based on consent, the dependency existing in the employment relationship and the circumstances under which the consent was given shall be taken into account in particular when assessing the voluntariness of the consent. Voluntariness may exist in particular where a legal or economic advantage is achieved for the employee or where the employer and the employee pursue congruent interests. The consent shall be in writing unless another form is appropriate due to special circumstances. The employer shall inform the employee in text form about the purpose of the data processing and about the right of withdrawal pursuant to Art. 7 para. 3 of Regulation (EU) No 2016/679.
(3)By way of derogation from Art. 9 para. 1 of Regulation (EU) No 2016/679, the processing of special categories of personal data within the meaning of Art. 9 para. 1 of Regulation (EU) No 2016/679 for purposes of the employment relationship shall be permissible where it is necessary for the exercise of rights or the fulfilment of legal obligations arising from employment law, the law of social security and social protection, and there is no reason to assume that the legitimate interest of the data subject in the exclusion of the processing prevails. Para. 2 shall also apply to consent to the processing of special categories of personal data; in this case, the consent must expressly refer to such data. § 20 para. 2 shall apply accordingly.
(4)The processing of personal data, including special categories of personal data, of employees for purposes of the employment relationship shall be permissible on the basis of collective agreements. The negotiating parties shall comply with Art. 88 para. 2 of Regulation (EU) No 2016/679.
(5)The controller shall take appropriate measures to ensure that in particular the principles for the processing of personal data set out in Art. 5 of Regulation (EU) No 2016/679 are complied with.
(6)The participation rights of employee representatives shall remain unaffected.
(7)Para. 1 to 6 shall also apply where personal data, including special categories of personal data, of employees are processed without being stored in a filing system or being intended to be stored in a filing system. The provisions on personnel records law of the Hessian Civil Service Act shall apply mutatis mutandis to employees under public law employment contracts, unless otherwise provided by collective agreement.
(8)Employees within the meaning of this Act are: 1. employees, including temporary agency workers in relation to the user undertaking, 2. persons employed for vocational training purposes, 3. participants in benefits for participation in working life and in assessments of vocational aptitude or work trials (rehabilitees), 4. persons employed in recognised workshops for persons with disabilities, 5. volunteers performing a service under the Youth Voluntary Service Act of 16 May 2008 (BGBl. I p. 842), amended by Act of 20 December 2011 (BGBl. I p. 2854), or the Federal Voluntary Service Act of 28 April 2011 (BGBl. I p. 687), last amended by Act of 20 October 2015 (BGBl. I p. 1722), 6. persons who, due to their economic dependency, are to be regarded as employee-like persons; these shall also include persons employed in homeworking and those equivalent to them, 7. civil servants within the scope of the Hessian Civil Service Act, judges of the Land and persons performing civilian service. Applicants for an employment relationship and persons whose employment relationship has ended shall be deemed to be employees. zur Einzelansicht § 23