Made in Germany · ISO 27001 · GDPR-compliant
LMS and the Works Council: How to Successfully Implement It Through a Works Agreement
In Germany, a learning management system is generally subject to co-determination—not because it is intended for monitoring, but because it collects usage and learning data that is objectively suitable for performance or behavioral monitoring. Involving the works council early on shortens the implementation process. Those who involve the works council too late risk a fully configured system being unable to go live for months.
This article explains which employee participation rights apply, what should be included in a works agreement for an LMS, and how you can significantly simplify the negotiation process with a highly configurable system.
Note: This article provides a practical overview and is not a substitute for legal advice.
Skills Development
Assessment
Certification
Relevance
Why an LMS Is Subject to Employee Participation
Section 87(1)(6) of the Works Constitution Act (BetrVG) is central: The works council has a say in the introduction and use of technical devices intended to monitor the behavior or performance of employees. According to established case law of the Federal Labor Court, the objective suitability for monitoring is sufficient for this purpose—the employer’s intent is irrelevant.
An LMS typically tracks:
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Registration and Hours of Operation
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Course Duration and Progress
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Test and Examination Results
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Completion Rates, Certificates, and Delays
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For AI features: Recommendations based on individual learning histories
In theory, each of these data points can be linked to a specific individual and analyzed. As a result, the threshold set forth in § 87(1)(6) of the BetrVG is practically always met.
Legal Provisions
An Overview of Other Equity Interests
Co-determination is not limited to the issue of monitoring. Depending on the scope of the LMS's functionality, additional rights may apply:
| Regulation | Contents | Relevance to the LMS |
|---|---|---|
| § 90 BetrVG | Information and Consultation Regarding the Planning of Technical Systems—Explicitly Including the Use of AI | The works council must be informed as early as the selection phase, not just before the system goes live |
| § 87(1)(6) BetrVG | Co-determination regarding technical devices for monitoring performance and behavior | Core provision—basis for the works agreement |
| § 80(3) BetrVG | Consultation with experts; this is considered necessary for AI-related matters | Plan for AI-supported functions (recommendations, content generation) |
| § 94 BetrVG | Consent to General Performance Evaluation Principles | Relevant when competency assessments or skill matrix data are incorporated into performance evaluations |
| Sections 96–98 of the BetrVG | Participation in Workplace Vocational Training | Relevant to the Selection of Participants and the Implementation of Training Programs |
Recommendation
What Should Be Included in a Company Agreement for an LMS
The following checklist covers the provisions that are regularly negotiated in LMS operating agreements:
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Purpose and Scope —Which employee groups, locations, and modules are covered?
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System Description – usually provided as an attachment: modules, functions, hosting model, interfaces
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Data Catalog – What personal data is collected, and for what purpose?
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Roles and Access Rights – Who Can View Which Data (Employees, Managers, HR, L&D, Administration)?
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Permitted Reports – Comprehensive List of Authorized Reports, e.g., Proof of Mandatory Training
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Prohibition on monitoring performance and conduct —an explicit ban on the use of such monitoring for labor law purposes, with clearly defined exceptions (e.g., statutory obligations to provide evidence)
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Test Results – Visibility, Aggregation, and Test Repeatability
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Learning Time – Mandatory Training Counts as Work Time; Regulations on Voluntary Learning
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AI Features – Transparency Regarding Recommendation Logic, No Automated Hiring Decisions
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Interfaces – What data flows from HR systems to the LMS and vice versa?
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Retention and Deletion Periods – Aligned with Legal Retention Requirements for Records
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Change Management Process – How Are New Modules, Reports, or Updates Handled?
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Works Council Oversight Rights – Access to Configuration and Logs
From Real-World Experience
Common Points of Conflict—and How to Resolve Them
"Managers should be able to see who hasn't completed their mandatory training."
This is legitimate because compliance documentation requires personal data. The solution lies in purpose limitation: Managers can see the completion status (completed / pending / overdue), but not the test results, processing times, or number of attempts.
"Test results must not be used to make personnel decisions."
Frequently agreed upon: Results are relevant only to the learner and, if applicable, for certification purposes; evaluations are conducted exclusively on an aggregated basis for groups of a minimum size.
"Data retention periods conflict with the obligation to retain records."
A classic conflict of interests: Records of training and qualifications must sometimes be retained for years, whereas usage data does not. The company policy should distinguish between records (long retention periods) and usage data (short retention periods).
"Every update requires a new negotiation."
A change management process based on categories has proven effective: bug fixes and updates that do not involve new data processing are simply displayed, while new modules or reports require approval.
Decision
Master Employment Agreement or Individual Employment Agreement?
Many companies already have a framework IT work agreement that sets out general principles for IT systems. The LMS is then simply incorporated as an appendix (system description, data catalog, role concept)—which saves a considerable amount of time. If there is no framework agreement, it’s worth creating a separate LMS operating agreement that allows new modules to be added via appendices.
Proven Process
Involve the works council early on
Planning phase:
Inform the works council about the project (Section 90 of the Works Constitution Act (BetrVG))—ideally as early as the vendor selection phase.
System Description & Data Catalog:
Work with the vendor to draft it. The more specific it is, the shorter the negotiation will be.
Test installation:
Enable the works council to review roles, visibility settings, and reports on its own.
Drafting and Negotiation:
Based on the checklist, with a clear distinction between supporting documentation and usage data.
Completion Before Go-Live:
The system must not be used in a production environment without authorization.
SoftDeCC - a proven system
How SoftDeCC Simplifies Negotiations
The more finely a system can be configured, the easier it is to implement the agreements from a technical standpoint—and the faster an agreement can be reached.
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Granular Role and Permission Model: Visibility settings can be defined on a per-role basis; for example, managers can be granted access to completion status without being able to view test results. → Role and Permission Models in the LMS
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Choosing a hosting model: on-premises, data center of your choice (default: AWS Frankfurt), or hybrid—important for works councils that want a say in where the data is stored. → LMS Hosting
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Test Installation: The works council can review the configuration itself before making a decision. → LMS Test Phase
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Experience in regulated industries and corporate environments: SoftDeCC is used in large companies with employee participation, where such agreements are standard practice.
Exceptions to the Rules
Austria and Switzerland: Different Rules of the Game
Austria
According to Section 96(1)(3) of the ArbVG, monitoring measures that affect human dignity require the consent of the works council. Systems for processing personnel data are also covered by Section 96a of the ArbVG. Therefore, a works council agreement for an LMS is also the norm in Austria.
Switzerland
There is no right to co-determination as exists in Germany. However, Art. 26 of ArGV 3 is relevant: Surveillance systems designed to monitor employees’ behavior are prohibited. In addition, the revised Data Protection Act (revDSG) applies.
Public Service:
The federal and state laws governing employee representation, which include specific participation rights, apply here.
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Frequently Asked Questions
FAQs on LMS & the Works Council
Is every LMS subject to employee participation?
In Germany, the answer is essentially yes. It is sufficient that the system is objectively capable of monitoring performance or behavior—and that applies to any LMS that stores personal learning data.
When must the works council be involved?
As early as the planning phase (Section 90 of the Works Constitution Act (BetrVG)). Approval under Section 87 of the Works Constitution Act (BetrVG) must be obtained before the facility is put into productive use.
Are managers allowed to see whether mandatory training courses have been completed?
Generally speaking, yes, provided this is specified in the company agreement and limited to the fulfillment status. Detailed information such as test results or processing times is usually excluded.
Do AI functions require their own regulations?
It is advisable. When it comes to AI-related issues, the works council is generally required to consult an expert, and transparency regarding the logic behind the recommendations is a frequent point of negotiation.
Can a company agreement serve as the legal basis for data processing?
In principle, yes (Art. 88 of the GDPR). However, it must then comply with the requirements of the GDPR on its own—a works agreement cannot lower the level of data protection.
