With the rise of remote and hybrid work, there has also been a boom in remote workplace surveillance technology.
A recent analysis found over 500 related technology 'bossware' products are available on the market and the global employee computer monitoring software market is expected to grow by $US488 million to $US1.7 billion by 2029.
This boom raises questions about the ethics and legality of surveillance.
If organisations provide adequate legal notice to employees, they may monitor employees through cameras, audio, keystrokes, and mouse movements, even in remote work settings.
However, “some employers do not think about the legality of workplace surveillance, let alone which surveillance activities are reasonable,” Peter Leonard, a professor of practice at UNSW Business School, said.
When it comes to what’s legal (and what’s not) there is no simple answer, says Leonard, as the legality of monitoring employees who are working remotely varies from state to state in Australia.
Leonard said surveillance is broadly illegal except where the law expressly permits it.
“The Workplace Surveillance Act NSW mandates that companies provide employees with a 14-day notice if they intend to use surveillance in the workplace," he said.
"This includes activities such as monitoring computer keystrokes, recording conversations, and optical surveillance.
“Only notice is required. Employers are not required to get prior consent from affected employees."
Section 16 of the Act addresses situations in which employees are working remotely. The Act allows surveillance of such employees who are using work devices when they are not at their workplace.
"If you are working from home and you are using equipment or online services provided at the expense of the employer, then, with prior notice, the employer can undertake surveillance," Leonard said.
This also includes using for-payment software services provided by the employer. For example, if an employee is using employer-paid-for Microsoft 365 Professional on their personal computer and logged in using their work-related email, the employer may monitor their activities while using the software service.
Why does workplace monitoring happen?
“There is understandable concern among employees about employers spying on their activities. There are many examples where employers are demonstrably intrusive and disrespectful in their monitoring practices," Leonard said.
“Some employers simply don’t understand how to implement responsible data governance practices that limit monitoring to that which is reasonable, necessary, and proportionate."
Employers may monitor employee’s work devices for several reasons.
“In some limited circumstances, an employee’s legitimate expectations of privacy may need to give way to concerns and legal responsibilities of employers to protect workplace safety, information security or commercial confidentiality," Leonard said.
“For instance, assume that I log in to a work-provided service from an uncustomary overseas location. My employer might use geo-locating features to query whether it was me logging in.
"To ensure information security, some employers also use keystroke technology, analysing patterns of keystroking that may indicate a person typing is not the individual entitled to use a particular user account.”
And cyber security is a very real concern in the age of hybrid and remote work.
Since the start of the COVID pandemic, ransomware attacks have increased by nearly 500%. Employers also have a role in safeguarding the security of their remote workforce.
In practice, employers should ensure that remote staff maintain current operating systems and practices such as installing up-todate security software.
Leonard says such measures help create a secure and protected environment for remote work, benefiting both employees and the organisation.
How to approach remote workplace surveillance
Leonard acknowledges that balancing the interests of employers, rights and legitimate expectations of employees is not an easy equation to get right.
“Workplace surveillance should be done carefully and for the right reasons,” Leonard said.
Transparency on both the employer and employee sides is one of the most important elements to consider.
“Hybrid workers should start by thinking about how they use resources and equipment provided by their employer,” Leonard said.
“If employees are concerned about workplace surveillance practices, they should ask their employer for a full description of those practices and associated policies. Employers and employees should each expect a respectful workplace dialogue about when and to what extent monitoring is justified.
'There should also be full disclosure as to technical and operational safeguards and controls put in place by the employer to ensure that monitoring is a reasonably necessary and proportionate means to a justified end.
"Transparency, and dialogue, are key.”
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