Published on the 12/10/2023 | Written by Heather Wright

To spy or not to spy on remote workers…

It’s a fairly safe bet that Suzie Cheikho is among the legions of employees who don’t believe employee monitoring software has a place in a fair and just world. 

The long-time Australian IAG employee – she had been with the company 18 years – was dismissed in February after keystroke logging software recorded an average of just 48.6 keystrokes per hour in October 2022, with 117 hours during work time showing zero activity. Her numbers for November were even worse.

“Transparency, and dialogue, are key.”

Cheikho’s claim for unfair dismissal was thrown out by the Fair Work Commission, which found she had been dismissed ‘for a valid reason’.

Employee monitoring, often dubbed ‘bossware’ by critics, became a growth market during covid, spurred on by the massive covid-enforced moves to work from home.

But while the pandemic may be becoming just a bad memory for many of us, bossware appears to have gained a foothold.

Earlier this year a report from ResumeBuilder found that 96 percent of remote companies were using employee monitoring software – up from just 10 percent pre-pandemic. While the pandemic spurred strong uptake, 20 percent said they only started monitoring within the past year.

And keystroke logging is just one small part of the market: Email monitoring, screen record and capture, time tracking… there’s monitoring software for it all. 

The ResumeBuilder found 37.4 percent of respondents required their employees to be on a live video feed. Of those, 93 percent said the feed is monitored. Monitoring web browsing and application use (62 percent), blocking content and apps (49 percent) topped the list of monitoring software deployed, followed by tracking attention via biometrics, capturing random screen shots, logging keystrokes and requiring employees to be on video.

Unsurprisingly, workers aren’t often a fan of employee monitoring software and argue invasion of privacy and erosion of trust.

Microsoft’s 2020 attempt to introduce the Productivity Score, which collected data on how its tools were used by employees, including how often you used email or attended video meetings, into its Microsoft 365 suite was roundly criticised. The company denied it was a work monitoring tool, claiming it was a way of ‘discovering new ways of working’ and providing teams with collaboration and tech experiences. It was later replaced by the ‘Adoption Score’, which promised ‘user-level privacy’, reporting aggregated data, rather than data on individuals.

The ResumeBuilder report notes that 73 percent of respondents fired staff because of data gathered from the monitoring staff. But equally, 69 percent said they’ve had employees quit because they didn’t want to be monitored. Of that group, 35 percent say they’ve lost six to 10 workers over the issue.

Professor Peter Leonard, a professor of practice for the Schools of Management and Governance and Information Systems and Technology at UNSW Business School, says the concern among employees about their bosses spying on their activities is understandable.

“There are many examples where employers are demonstrably intrusive and disrespectful in their monitoring practices,” Leonard says. 

“Some employers simply don’t understand how to implement responsible data governance practices that limit monitoring to that which is reasonable, necessary and proportionate.”

In reality, employee monitoring isn’t new. Surveillance in myriad forms has been deployed in workplaces for years. But with the workplace now in the home, the technologies deployed have evolved, and the concerns have escalated. 

Increased productivity is the most cited reason for businesses using employee monitoring software, with the ResumeBuilder survey showing 97 percent of those investing in the software believing ‘somewhat’ ‘or strongly’ that it has paid off through increased employee productivity.

Others argue that monitored employees show increased accountability and are less likely to engage in conduct that breaches workplace policies.

Using monitoring tools can also provide the data to inform decision making that can improve processes and actually help employees.

When properly used, some monitoring solutions can also help companies identify when employees are overworked and needing assistance.

Monitoring can also be an important element of cybersecurity and anti-fraud measures.

“For instance, assume that I log into a work-provided service from an uncustomary overseas location,” Leonard says. “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 might indicate a person typing is not the individual entitled to use a particular user account.”

Leonard, who was a founding partner of Gilbert + Tobin Lawyers, notes that when it comes to what is legal and what’s not, there is no simple answer. Legality varies depending on location. In Australia, that means state by state. 

NSW’s Workplace Surveillance Act mandates companies provide 14-day notice – but not consent – before using surveillance in the workplace and allows surveillance of employees using work devices remotely.

In New Zealand, the Privacy Commissioner’s website notes – in a section that hasn’t been updated since late 2020 – that employers should only collect information necessary to carry out ‘legitimate’ functions.

“You’re not allowed to collect information just because you can – you need to be able to justify why you need to collect the information in order for your agency to function,” the Commissioner’s office says.

“While agencies generally have a proper basis to monitor how their employees are using their computers or other devices, including their emails and internet usage, you need to make it very clear exactly what they are allowed to use work equipment for and the extent to which this may be monitored.”

The usual caveats of ensuring data collection isn’t unlawful, unfair or unreasonably intrusive also apply, further clouding the situation. 

Forcing an employee working from home to keep their laptop camera on ‘is likely to be a breach’ of requirements that means of collection shouldn’t be unfair or unreasonably intrusive, it notes. 

Leonard says balancing the interests of employers and the 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,” he cautions.

And key to it all, is transparency – on both the employer and employee side. 

“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.”