U.S. Company's Mandatory Video Surveillance Violated Dutch Rights

[This article has been updated.]​

A U.S.-based employer faced legal consequences after it terminated a remote employee in the Netherlands who refused to keep his camera on for the whole workday. The Dutch Court held that the dismissal of the employee was illegal, in part, because the employer violated the employee's right to a private life. This case highlights how employers run risks when they oversee the productivity of remote employees and the use of technology in doing so. While employers seek to manage the virtual workplace, they may come into conflict with their employees' desires to maintain privacy—especially in this complex and evolving area of employment.

Chetu Terminated Employee Who Refused Video Surveillance

Chetu Inc. is an American company that produces, publishes and provides support for software, employing approximately 2,600 employees worldwide. Chetu hired the plaintiff in this case, an unnamed employee, as a telemarketer to work remotely from the Netherlands in 2019.

In August 2022, Chetu sent the employee an e-mail informing him that he needed to participate in a virtual corrective action program and that he would need to keep his camera on for the entire work day. Chetu said the decision to add him to the program occurred after several months of unsatisfactory performance and coaching from his manager. The company’s corrective action program had helped employees in the past, and Chetu said it was intending to do the same for the now former employee. 

Chetu said the employee was made aware that he was to be on camera for the corrective action program prior to being enrolled. It was well understood that this is common practice for those who need extra coaching to get them back on track, according to the company. The employee responded by e-mail that he did not feel comfortable being monitored for hours a day by a camera because it was an invasion of his privacy. He further stated that Chetu could already monitor his activity as he had to share his screen. 

The employee was asked several times over the course of a week to turn his camera on during his work hours, Chetu said. Only after numerous opportunities were offered to comply with the agreed-upon program standards, was the employee terminated for insubordination, according to Chetu. Chetu stood by the belief that its monitoring was the same as if the employee was observed in the office. When the employee responded with similar objections the next day, Chetu sent him an e-mail stating: "Hi [unnamed employee], Your employment is hereby terminated. Reason: Refusal to work; insubordination."

The employee then brought suit in a Netherlands subdistrict court alleging that his immediate dismissal was not legally valid. Chetu didn't appear in the case. Due to the closure of the Dutch branch of Chetu in April, Chetu was never served with a petition from the Dutch courts—neither in person, nor electronically—and the ruling against the company was in absentia, the company said. All communication with its HR team by the ex-employee prior to the suit being filed were fact-finding as to the dismissal, but no indication of an impending lawsuit was ever mentioned, the company said. Prior to seeing the decision in media reports, the company said it was not aware of the lawsuit. The court record indicates that the petition was filed on Sept. 2, 2022. while the company was completely deregistered in the Netherlands by the end of August 2022. 

Court Held that Employee Was Illegally Dismissed

Under Dutch law, an employer may fire an employee with immediate effect and without severance pay, but three requirements must be met: 1) the employer must have an urgent reason, 2) give the employee notice immediately and 3) provide the employee with a sufficient explanation.

The court held that Chetu had not legally dismissed the employee for several reasons:

1. Insufficient Notice. First, the court found that Chetu had not given the employee any explanation of the nature and seriousness of his actions and thus did not give him proper notification of the reason for his dismissal.

2. No Refusal to Work. The court also determined that despite Chetu's assertion that the employee had refused to work, the employee had not communicated a refusal to work solely through his e-mails in response to the video surveillance request. Therefore, the alleged refusal to work did not demonstrate an urgent reason required for dismissal.

3. Violation of Privacy Rights. Most notably, the court found the dismissal illegal because Chetu's request for the employee to keep his camera on violated his right to a private life and therefore was not a reasonable request with which the employee could have complied.

The court pointed to a European Court of Human Rights (ECHR) ruling that stated that "strict conditions are attached to observing employees." The ECHR reasoned this was because "video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee's private life, and hence [the court] considers that it constitutes an interference within the meaning of Article 8 [Convention for the Protection of Human Rights and Fundamental Freedoms]. Any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which that provision refers and is necessary in a democratic society in order to achieve any such aim."

The court considered Chetu's requirement for surveillance in light of the fundamental right to a private life within Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although in the EU fundamental rights generally only affect the relationship between the state and its citizens, an individual can invoke a fundamental right in "private-law employment" where the state does not offer adequate protection. The court found that that this was the case here as the Netherlands did not have protection for the "mere observation of the employee."

Based on this analysis, the court concluded that Chetu's requirement that employees keep their camera on all day was an unjustifiable violation of the fundamental right to a private life. The court ordered Chetu to pay the employee approximately 75,000 euro (approximately $79,506), including damages for unpaid compensation, wrongful termination, worker transition assistance, additional compensation and unpaid vacation days.

What Should You Do?

As remote work has become more prevalent over the past few years, so has the use of technology as a tool for employers to observe their employees' productivity. However, this case demonstrates how different jurisdictions' rules on technological and other types of surveillance can vary, and how an employer's right to supervise its employees can conflict with employees' privacy rights.

Employers with remote workers located in other states—or outside the United States—should specifically consider whether their workplace surveillance practices are in line with the laws of the jurisdiction(s) where the remote employees are located. In general, employers that implement such technology should consider the extent to which the monitoring is necessary for legitimate business purposes, whether employees are entitled to any advance notice and whether there are any other less invasive ways to monitor productivity. 

Nazanin Afshar is an attorney with Fisher Phillips in Woodland Hills, Calif., and Los Angeles. Sophia Ellis is an attorney with Fisher Phillips in Los Angeles. © 2023 Fisher Phillips. All rights reserved. Reposted with permission.