Our company operates in Sweden, France and Poland. We send information about our employees from one country to another for things like payroll and job assignments. We’re considering expansion to Ukraine and hire people locally there. What are the main things we need to do to make sure we’re handling our employees’ personal information correctly across those countries?
Understanding the Legal Question
The user’s question involves the cross-border transfer of employees’ personal data within the European Union as well as a potential expansion that includes transferring personal data to a non-EU country (Ukraine). The question seeks to identify compliance obligations under the General Data Protection Regulation (GDPR) to lawfully process and transfer this personal data for business purposes such as payroll processing and job assignments.
Ambiguities in the Legal Question
Scope of Transfers: Clarification is needed on whether the personal data will be transferred to other entities or will remain within the company.
Types of Data: While employee information is mentioned, it is unclear whether specific categories of personal data or sensitive data will be involved.
Existing Data Protection Measures: We do not know what current data protection measures or mechanisms the company already has in place for transfers.
Data Protection Authority (DPA) Consultations: The question does not indicate if the company has previously engaged with DPAs in any of the mentioned countries or if such consultations are part of their compliance process.
Assumptions for the Legal Analysis and the Plan for the Junior Lawyer
Note: The junior lawyer is what we call a subsystem of Hotseat that completes helper tasks
Intra-company Transfers: We will assume that the data transfers occur only within the company and not to third parties.
General Employee Data: The transfers include general employee data necessary for payroll and job assignments but do not include special categories of data.
Current Compliance: The company is currently compliant with GDPR for intra-EU transfers but has not yet put in place specific mechanisms for transfers to non-EU countries.
DPA Engagement: We will assume that the company has not engaged with DPAs regarding their processing activities.
Plan for the Junior Lawyer:
Initial Review:
Familiarize with Key Concepts: Read Article 4 to understand key definitions such as ‘personal data’, ‘processing’, ‘controller’, ‘processor’, and ‘supervisory authority’.
Intra-EU Data Transfers:
Review of Internal Data Transfer Mechanisms: Examine Articles 26 and 29 focusing on the responsibilities of joint controllers and processors within the company regarding data processing and employee data access.
DPA Notification: Check Article 33 to determine if any DPA notifications are required for routine transfers of employee data within the EU.
International Data Transfers:
Adequacy Decisions: Explore Article 45 to learn about transfers based on an adequacy decision, which may not apply directly to Ukraine but provides context on safe data transfer mechanisms.
Appropriate Safeguards: Investigate Article 46, which outlines transfer mechanisms such as binding corporate rules that can be used for non-EU countries.
Binding Corporate Rules (BCRs): If BCRs are an option, thoroughly analyze Article 47 for how to structure, implement, and get approval for BCRs, which may be useful for the expansion into Ukraine.
GDPR Compliance for non-EU Expansion:
Data Protection Measures: Suggest measures based on Article 32 to ensure data security, including pseudonymisation and encryption, as part of the expansion strategy to Ukraine.
Additional Obligations:
Data Subject Rights: Ensure the plan addresses Articles 13 through 22, providing employees with information on their data rights, especially for new employees in Ukraine.
Legal Grounds for Processing: Confirm the legal basis for processing in the international context per Article 6, potentially relying on the necessity for contract performance.
Documentation: Advise on maintaining detailed records of processing activities under Article 30, critically important for demonstrating GDPR compliance.
DPAs Engagement:
Liaison with DPAs: Consult Article 36 for when it’s necessary to proactively engage with DPAs for high-risk processing, which may include the setup of new operations in Ukraine.
Ukraine-specific Considerations: Evaluate whether specific provisions or cooperation agreements exist for Ukrainian employee data under Articles 44 to 50.
Consolidation of Findings:
Compile a Compliance Report: Based on Articles 5, 6, 25 to 50, draw up a comprehensive compliance report covering intra-EU and international transfers, appropriate data protection measures, and the actions necessary for GDPR compliance expansion into Ukraine.
Final Deliverables:
Prepare a summary including recommendations for the company’s compliance strategy regarding employee data transfers, particularly with the Ukraine expansion.
Draft guidelines for ongoing GDPR compliance monitoring and potential DPA consultations.
Definitions and Terms from the General Data Protection Regulation:
Personal Data: Information relating to an identified or identifiable natural person.
Processing: Any operation or set of operations performed on personal data.
Controller: The entity that determines the purposes and means of personal data processing.
Processor: An entity that processes personal data on behalf of the controller.
Supervisory Authority: An independent public authority established by a Member State to monitor the application of the GDPR.
Binding Corporate Rules (BCRs): Internal rules adopted by multinational groups of companies for transfers of personal data within the group to entities in third countries.
Data Subject Rights: The rights granted to individuals concerning the processing of their personal data.
Question Clarity Rating
Somewhat clear
Clarity Rating Explanation
The original question is quite broad and lacks specific details that may be necessary for a fully informed legal response. For example, it is not clear if the current data transfer mechanisms in place comply with the GDPR or if there are any current issues they face; also, there is no mention of any existing data protection measures beyond cross-border data transfers. The mention of expansion to Ukraine introduces a new jurisdiction with potentially different data protection requirements. There are enough details to understand the user’s intent and situation, but greater specificity would provide a clearer path to ascertain their compliance needs under GDPR.