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The Impact of GDPR on Employment Law in the Netherlands

Submitted by Firm:
August Debouzy
Firm Contacts:
Fabienne Haas, Laure Hosni, Philippe Durand
Article Type:
Legal Article

Here are four simple tips to help you learn about The Impact of GDPR on Employment Law in the Netherlands:

  1. Understand the Basics of Joint Employer Status: Begin by familiarizing yourself with what joint employer status means. It's a legal concept where two entities are considered the employer of the same group of employees. This can occur in various employment scenarios, such as with temporary staffing agencies, subcontractors, or in franchise relationships.
  2. Explore the Historical Context and Recent Changes: Research the evolution of the joint employer rule, especially the significant changes in recent years. Pay attention to the Browning-Ferris decision in 2015 and its impact, the 2020 rule reversal, and the reinstatement of the broader definition of joint employer status under the NLRB’s 2023 rule.
  3. Examine the Implications of the 2023 Rule: Dive into the specific criteria and conditions listed in the 2023 rule that determine joint employer status. This includes understanding the broader range of factors like indirect or reserved control over employees, which can now lead to a joint employer finding.
  4. Stay Updated on Future Developments: Since labor laws, particularly those regarding joint employer status, are subject to change based on political and legal developments, it's important to stay informed. Follow updates from reliable legal resources, labor law experts, and the National Labor Relations Board's announcements for the latest information.

The Impact of GDPR on Employment Law in the Netherlands

Welcome to our discussion on the critical intersection of GDPR and employment law, especially focusing on the Netherlands. This post is inspired by insights from the Employment Matters podcast, hosted by Philippe Durand, with our guest expert Danny Vesters, a partner at Boontje Advocaten & Mediators in Amsterdam and a GDPR specialist. In this post, we delve into the nuances of GDPR as it relates to employment, celebrating its fifth anniversary and its growing importance in the European Union. We'll start with a broad overview of GDPR and then zoom in on its implications in the Dutch legal landscape.

What is GDPR? A Quick Overview

GDPR stands for the General Data Protection Regulation, a comprehensive set of rules designed to govern the processing of personal data. Central to GDPR are two key parties: the controller and the data subject. In an employment context, these translate to the employer (controller) and the employee (data subject). This regulation, effective since May 25, 2018, mandates that employers, as data controllers, must be vigilant when processing employees' personal data. This is a daily occurrence in the employment realm, making understanding and compliance with GDPR rules crucial for businesses.

GDPR's Impact on Employment Law in the Netherlands

In the Netherlands, GDPR takes a prominent role in shaping employment law. Employers must navigate a complex web of statutes and legal rules to ensure they respect employees' privacy while complying with GDPR. As we focus on the Dutch jurisdiction, it's essential to understand the specific legal frameworks and regulations employers must adhere to in connection with GDPR. This includes being aware of how employee data is collected, stored, and used within the organization.

Expanded Understanding of Privacy and GDPR in Employment

GDPR in Employment

Privacy is a multi-faceted concept in the context of employment, extending beyond mere personal data processing. As expert Danny Vesters highlights, GDPR is just one facet of the broader privacy framework affecting both employees and employers. This broader understanding includes considerations under Article 8 of the European Convention on Human Rights (ECHR), which safeguards relational and informational privacy, aligning with GDPR principles. Additionally, Dutch law, particularly Article 10 of the Dutch Constitution, echoes similar privacy protections.

Legal Tools for Privacy and Data Protection

Employers need to be equipped with a variety of legal tools to address privacy concerns effectively. Alongside GDPR, Article 8 of the ECHR and Article 10 of the Dutch Constitution are pivotal in shaping privacy practices in the workplace. These legal provisions offer employers and employees distinct pathways for addressing privacy issues. While GDPR focuses on personal data, Article 8 of the ECHR offers a more general approach to privacy, often favored in employment disputes.

The Consequences of Privacy Breaches in Employment

The post-GDPR landscape has heightened the stakes for privacy breaches in employment. These breaches can lead to significant legal and financial consequences for employers, including the potential for excluding critical evidence in legal disputes. This shift in awareness and legal accountability makes it imperative for employers to understand and rigorously implement privacy regulations, particularly in complex cases involving personal data breaches.

Claiming Damages for Privacy Breaches

Article 82 of GDPR allows employees to claim damages for privacy breaches, encompassing both material and immaterial damages. However, quantifying these damages can be challenging, especially under Dutch law, where such claims are not common practice. In cases not directly related to personal data but more general privacy breaches, Dutch civil law (specifically Article 611 of the Dutch Civil Code) provides another avenue for addressing employer misconduct related to privacy.

Understanding the Financial Implications of Privacy Breaches

while breaching privacy rules in a company might not always lead to substantial financial penalties, it's a misconception to consider such breaches as risk-free

Expert Danny Vesters emphasizes that while breaching privacy rules in a company might not always lead to substantial financial penalties, it's a misconception to consider such breaches as risk-free. Even though direct penalties might seem minimal, the overarching implications can be significant.

In the Dutch legal system, employers face not only the prospect of minimal statutory damages but also the possibility of additional compensation claims. Recent cases have seen substantial awards for privacy breaches, reflecting a growing recognition of privacy rights in the employment context.

The Risks Beyond Financial Damages

A critical risk beyond financial damages is the potential exclusion of evidence in legal disputes due to privacy breaches. This aspect of privacy law can significantly affect the outcome of employment cases, particularly in situations where the breach is substantial. Vesters cites examples where privacy breaches have led to the exclusion of key evidence, undermining the employer’s legal position. This risk necessitates a balanced and careful approach to evidence gathering in compliance with privacy norms.

Practical Advice for Employers on Privacy Compliance

For employers operating in the Netherlands, Vesters advises a thorough understanding of both GDPR and local privacy laws. It's crucial for employers to not only know these rules but also to understand how they are applied within their own organizations. Employers should adhere strictly to their own privacy policies and ensure that all measures taken are proportionate to their intended goals. Overreaching actions can lead to adverse legal consequences, including the risk of invalidated evidence and increased compensation claims.

Emphasizing Awareness and Proportionate Actions

In wrapping up the insightful conversation, host Philippe Durand underscores the importance of awareness and compliance with privacy rules in the employment context. Danny Vesters' practical advice highlights the necessity for employers to apply proportionate actions in specific situations, a crucial aspect in navigating the complexities of GDPR and privacy laws.

This emphasis on understanding and adhering to legal norms is invaluable for employers, especially those operating in the Netherlands. The discussion reiterates the importance of being informed and proactive in managing privacy issues in the workplace.

This blog post, drawing from the Employment Matters podcast, offers a comprehensive overview of GDPR's impact on employment law. The insights shared by Danny Vesters, a GDPR expert, shed light on the intricacies of privacy regulations and their implications for employers and employees alike.

We thank Danny Vesters for his invaluable contributions and Philippe Durand for facilitating this engaging and informative discussion. For those seeking further information or legal advice, connecting with experts like Danny through the Employment Law Alliance (ELA) is highly recommended.