Between the move to hybrid, remote or distributed work spurred by the pandemic and the ‘quiet quitting’ trend, employers are increasingly considering (and implementing) surveillance of their employees. We’re also seeing an increasing number of examples of this practice backfiring in cases where employers haven’t adequately considered the legal risks and business risks that come with employee monitoring. Let’s take a look at some of these risks:
Employee Surveillance May Worsen Quiet Quitting
Employee surveillance is promoted (by employee surveillance developers) as the antidote to poor productivity and even ‘quiet quitting’ – the trend where employees only do the tasks and work the hours listed in their job description instead of going over and above.
However, recent research suggests that employee monitoring tends to decrease engagement and effort, and even encourage rule-breaking. To us, the decreased engagement makes sense. We have found that empowering our employees to tackle their work and then trusting them to do it has an incredible impact on the quality of both the work and the worker’s attitude towards their work.
Employers May Breach Data Privacy Laws Through Surveillance
Employee privacy in California has also recently been bolstered by the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA).
The CCPA requires employers to alert employees to the categories of personal information that an employer collects, as well as the purpose for their collection of that personal information.
The CPRA introduced additional requirements (that will come into effect on January 1, 2023) for employers. In addition to the notice requirement above, covered employers must provide employees with certain information about their rights relating to their data. They must also allow employees to access, correct, delete, and restrict the use of the personal information the employer has collected.
Employers Must Be Cautious About Adjusting Pay Based on Productivity Data
In 2021, we saw a company settle a wage and hour claim with an employee for an undisclosed sum after the company decreased her wages based on productivity data it amassed through surveillance. The company (incorrectly) assessed that the employee’s agreed hourly wage should not be paid for 10-minute increments where the software did not detect any work.
In practice, there are many reasons workers may not be ‘productive’ online every ten minutes. For instance, they may be chatting with a manager after grabbing a coffee, accepting a parcel, greeting a client, or running an errand.
Businesses should be aware that making decisions about pay or a person’s employment (whether that’s hiring, firing, promoting, or failing to promote) based on productivity data and surveillance devices and/or software is risky. If this software exists and is used in decision-making, there should be robust policies in place to ensure that the data collected is used as part of a matrix in decision-making – not the sole determining factor.
If you monitor your employees, we suggest you reach out to your legal counsel as soon as possible to ensure your monitoring is compliant.
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