Keeping Tabs: The Ethical Obligation of Employers in Disclosing Workplace Surveillance

The Rise of Workplace Surveillance and its Legal and Ethical Implications

The “New Normal” and the Shift in Work

The COVID-19 pandemic has undoubtedly transformed the way we work. With the widespread adoption of remote and hybrid work models, employees are now enjoying increased flexibility and productivity gains. However, this shift towards the “new normal” has blurred the boundaries between work and personal life, giving rise to a phenomenon known as “productivity paranoia.” Employers, driven by concerns about their remote workers’ productivity, have turned to electronic monitoring and surveillance devices to keep tabs on their employees even when they are not physically present.

The Pervasiveness of Workplace Surveillance Tools

According to a survey conducted by Microsoft, a staggering 85% of managers across 11 countries struggle to trust their remote-working employees. In Australia, this figure is even higher, reaching 90%. Research and consulting firm Gartner estimated that since the start of the pandemic, the number of large firms tracking, monitoring, and surveilling their workers has doubled to 60%.

These electronic monitoring and surveillance technologies have the ability to capture screenshots of an employee’s computer, record their keystrokes and mouse movements, and even activate their webcams or microphones. While these tools can provide businesses with valuable data for analytics and performance evaluation, they also raise serious legal and ethical concerns.

The Legal Framework in Australia

In Australia, workplace privacy and surveillance are regulated by a complex array of legislation. While proposed reforms to the Privacy Act 1988 aim to enhance privacy protections for private-sector employees, they do not specifically address workplace surveillance. Instead, each state and territory has its own set of laws governing this matter.

For example, in New South Wales and the Australian Capital Territory, employers must provide at least 14 days’ notice before undertaking any surveillance activities. This notice must include specific details about the type of surveillance that will be conducted, and employers must also develop and adhere to a surveillance policy. In these states, employers can only record visual images of an employee while they are “at work,” which is broadly defined to include any place where work is carried out. Covert surveillance is prohibited unless the employer has obtained a court order, and even then, it must not unduly intrude on the employee’s privacy.

In other states and territories, workplace surveillance is regulated by more general surveillance legislation, and consent from employees, whether express or implied, is usually required. Consent is typically obtained through the implementation of a workplace surveillance policy, which employees must agree to when accepting their job. However, the bargaining power of most employees is often limited, making it challenging to negotiate or challenge the inclusion of such terms in their employment contracts.

The Disconnect Between the Law and Rapid Advancements in Technology

A parliamentary select committee in New South Wales highlighted, in its 2022 report, that the current regulatory framework is struggling to keep pace with the rapid advancements in electronic monitoring and surveillance. It criticized legislation that merely allows employers to notify workers of surveillance activities without providing any mechanism for negotiation or challenge.

The situation is slightly better in the Australian Capital Territory, where employers are required to consult with workers in good faith about any proposed surveillance activities. Workers who suspect their employer is spying on them should review their workplace surveillance policies and consider seeking arbitration from the Fair Work Commission or challenging their dismissal as unfair if it follows intrusive surveillance.

The Need for Stronger Legal and Ethical Protections

To navigate the challenges posed by workplace surveillance in the “new normal,” it is crucial to bridge the gap between existing legal protections and the capabilities and potential harms of electronic monitoring and surveillance technologies.

Employers must prioritize transparency and communication with their employees regarding their surveillance practices. It is not only a legal obligation to provide notice but an ethical responsibility to foster trust and maintain healthy work environments. Employees, on the other hand, should familiarize themselves with their workplace surveillance policies and be mindful of their use of work computers to preserve their privacy.

Furthermore, policymakers should update and strengthen legislation to address the evolving landscape of workplace surveillance. This includes establishing clearer boundaries around when and how surveillance can be conducted, ensuring that employees have the opportunity to negotiate and challenge surveillance activities, and providing avenues for redress and complaint resolution.

Conclusion

The advent of remote and hybrid work models has led to a significant increase in workplace surveillance. While some aspects of electronic monitoring may be necessary for organizational security and data protection, the indiscriminate use of surveillance technologies raises profound legal and ethical concerns. Striking the right balance between transparency, privacy, and productivity is essential in cultivating a healthy and sustainable work environment in the “new normal.”