> If you say "I'll give you $100 if you consent", the employee can agree, but that doesn't count as valid consent or binding contract and doesn't permit you to do the thing with that employee's data
Yes - illegal things are illegal, of course. I can pay someone $1 to kill someone as a freely arrived at agreement, but that's illegal. What I was saying is orthoganal to legality. It's about whether or not the employer-employee relationship is 100% coercive.
It might not be 100% coercive, however, at least in the EU the general legal principle seems to be that by default it should be assumed that it is coercive, due to the inherent power imbalance in employment contracts.
E.g. PriceWaterhouseCoopers was fined for unlawful handling employee data despite having having the employees "agree" to it (https://www.lexology.com/library/detail.aspx?g=9a315cca-bc71...), and the "consent" being in the employee handbook effectively was an additional violation "PwC had processed the personal data in an unfair and transparent manner, by giving the false impression that it was relying on consent".
For resolving such issues, quoting that article, "the EDPB/ICO guidelines stipulate that in an employment context, consent cannot be given freely as there is most likely an imbalance of power between the employer and the employee".
It could be that in some particular scenario the relationship wasn't coercive at all and the consent is valid, but it would be up to the employer to demonstrate that, and if somehow 100% of employees consented to monitoring, it could be very, very difficult for the employer to demonstrate that no "motivation" (positive or negative) was involved and everyone really just loves being monitored as a pure coincidence.
Yes - illegal things are illegal, of course. I can pay someone $1 to kill someone as a freely arrived at agreement, but that's illegal. What I was saying is orthoganal to legality. It's about whether or not the employer-employee relationship is 100% coercive.