🔒Watching Workers: Remote monitoring of employees raises privacy concerns

Although more of us are back in the office in recent months, remote work appears to be here to stay.

But the new normal of home offices and work-from-home days brings with it a host of issues around the role of electronic monitoring as employers struggle with maintaining productivity.

“Electronic monitoring is not completely new… but monitoring us in our home environment is newer,” said Carrie Bulger, a professor of psychology at Quinnipiac University who specializes in organizational dynamics. “Boundaries have been sort of blurry, and they are becoming blurrier and blurrier with more technology with computers at home and internet access.”

Bulger studies how technology like smartphones and other mobile devices impact boundaries between work and home and how managers can navigate these new boundaries. With the evolution of tracking software and the pandemic-driven trend of remote work, those boundaries are in constant flux, she said.

The key to creating a monitoring policy for remote workers is clear and direct communication from employers, Bulger said.

“Monitoring can be viewed in different ways,” Bulger said. “As long as it is explained well and not done in an intrusive way, it can be fine. But if people don’t know they're being monitored, then that is a certain breach of privacy.”

Issues around productivity at home are a rising concern among employers as allowing remote work becomes the cost of doing business at many companies even as the pandemic fades, according to experts.

Despite “return-to-the-office” campaigns at many companies, only an average of 47.5 percent of workers were swiping into workplaces nationwide as of mid-September, compared with numbers prior to the COVID-19 pandemic, according to data tracked by security firm Kastle Systems reported in the Washington Post.

The increased adoption of remote work has resulted in steady or increased job satisfaction in most surveys of workers, Bulger said. “People are feeling that they have more control and more flexibility, which means less stress,” she said.

But increased use of electronic monitoring could impact employee job satisfaction in the long run, Bulger noted, adding to employer’s retention and productivity concerns. A better approach than amping up monitoring would be to involve employees in addressing remote-work productivity issues.

“An employer can explain the problem – what is it that monitoring is going to be aiming to solve – and involve the employees in making some decisions about how to solve that problem,” Bulger said. “Employees like to feel like they're being consulted and listened to, it increases feelings of fairness. So, to the extent that's possible, I think that’s the best route.”

Ambiguous guidelines

Workers who feel monitoring has gone too far are speaking out — if cautiously. Call center employees employed by Cigna in Bloomfield denounced the insurance company in May 2021 for what they considered excessively intrusive monitoring when they worked from home.

The COVID-19 pandemic jump-started an existing trend toward more electronic monitoring of workers, said Jennifer A. Pedevillano, a partner in the New Haven office of law firm Halloran Sage. Employers have access to a range of technology from keyboard-stroke tracking and mouse tracking to video screenshots that record an employee’s location during the workday.

Connecticut’s employee-monitoring law focuses on a traditional workplace and hasn’t been updated since 2012, Pedevillano said, making guidelines around tracking remote workers ambiguous from a legal standpoint.

“The interesting question becomes then, when everyone is working remotely, could you make a valid argument to extend that employer’s premises to your dining room table, or your living room or your home office,” Pedevillano said. “I think that’s probably a stretch, to be honest.”

At minimum, employers need to give notice to remote workers if they are monitoring keystrokes or mouse movement, Pedevillano said. But the use of a computer’s camera to take photos of an employee at home opens up a host of issues.

“Let’s say you learn while you’re monitoring your employee at home and you’re using the camera feature or you’re using a microphone and you learn something about their personal life that would make them fall into a protected class,” Pedevillano said. “And that employee is later terminated. Does that employee now have a discrimination claim because of what the employer learned?”

Pushback against the use of cameras in remote monitoring has begun in the courts: A federal judge in August ruled that Ohio’s Cleveland State University had acted unconstitutionally when it asked to use a camera to scan the bedroom of a student before he took a remote test.

“[The student’s] privacy interest in his home outweighs Cleveland State’s interests in scanning his room,” Judge J. Philip Calabrese said in his ruling. “Accordingly, the court determines that Cleveland State’s practice of conducting room scans is unreasonable under the Fourth Amendment.”

Blurred boundaries

The tight labor market is also pressuring some employers to ease off on electronic monitoring in general. Amazon recently revamped monitoring software in its warehouses that recorded every pause in workflow and could get a worker fired for a single bad day. Union drives at several Amazon sites and new state rules helped prompt the change, according to the New York Times.

“Employers usually just want to avoid that risk,” Pedevillano said of the issues around the use of cameras and microphones to monitor workers at home. “I’m not saying the employee will be able to prove their case – that’s a different issue. But even having to defend that case, that can be a challenge for employers.”

Giving notice to employees about remote monitoring is a must, Pedevillano said.

“I would also advise employers to look to balance the type of remote monitoring they’re using with their actual goals,” she added. “Do you really need to be taking a picture of someone sitting at their computer screen? All you're proving with that is that they’re in front of the computer, you may not be proving that they’re actually doing the work that they need to be doing to perform their job.”

Remote workers should also be aware that their home offices may not be as private as they assume.

“Employees should be very cognizant of where in the home they’re working and if there are other people at home with them. If a microphone is being used for monitoring, other conversations in the house could be picked up,” Pedevillano said. “So, I think there should be full disclosure by the employer and I think the employee should be cognizant of where they’re working, who’s around and to try to perform their remote work in as private of a location in their home as possible.”

It’s all part of a paradigm shift that started in the mid-1990s with the rise of computing technology, said Bulger of Quinnipiac: Work and home are no longer discrete spaces.

“More of us felt like the boundary between work and home was not as clear as it used to be,” Bulger said of the use of smartphones and other devices as part of their job. “With more people working remotely and the rise in electronic monitoring, boundaries are definitely becoming more blurred – or obliterated, if you prefer.”