The COVID-19 pandemic has brought about significant changes in the way we work, leading to a new model known as the “new normal.” This model is characterized by increased flexibility and productivity gains. However, it has also blurred the boundaries between work and personal life, and outdated attitudes are hindering our ability to effectively manage this new way of working.
One issue that has emerged is what experts call “productivity paranoia.” Managers are concerned that remote and hybrid workers may not be working enough when they are not under direct supervision. As a result, there has been a rise in the use of electronic monitoring and surveillance devices in the workplace. These devices allow managers to monitor employees even when they are not physically present. However, this practice raises serious legal and ethical concerns.
A survey conducted by Microsoft revealed that 85% of managers worldwide struggle to trust their remote-working employees, with the figure rising to 90% in Australia. Additionally, research from Gartner shows that the number of large firms tracking and monitoring their workers has doubled to 60% since the start of the pandemic.
Electronic monitoring and surveillance technology can capture various aspects of an employee’s work, such as screenshots of their computer, keystrokes, mouse movements, and even activate their webcam or microphones. While these tools can provide businesses with valuable analytics and productivity data, they also have a darker side. They can invade an employee’s privacy by capturing audio and visual images of their personal life, especially when working from home.
Certain aspects of electronic monitoring and surveillance are legitimate, such as safeguarding an organization’s data access and transfers. However, the boundaries of what is acceptable need to be clearly defined. Should organizations be legally obligated to inform employees about electronic intrusions? And what recourse do employees have if they discover they are being monitored without their knowledge?
In Australia, workplace privacy and surveillance are governed by a complex array of regulations. Proposed reforms to the Privacy Act 1988 aim to strengthen privacy protections for private-sector employees. However, workplace surveillance is regulated by a patchwork of laws in each state and territory. For example, in New South Wales and the Australian Capital Territory, employers must provide at least 14 days’ notice and specific details about any surveillance they plan to undertake. Covert surveillance is only allowed with a court order and is restricted to situations involving suspected unlawful activity.
Other states and territories have more general surveillance legislation, and employees are typically required to give consent, either express or implied, to any surveillance. This consent is often obtained through the implementation of a workplace surveillance policy that employees agree to when accepting a job.
The current legal framework is struggling to keep up with rapid advancements in electronic monitoring and surveillance. A parliamentary select committee in New South Wales has criticized legislation that only allows employers to notify workers about surveillance without providing a mechanism for negotiation or challenge. The situation is slightly better in the Australian Capital Territory, where employers must consult with workers in good faith regarding proposed surveillance activities.
Workers who suspect they are being monitored should review their workplace surveillance policies and consider their computer usage. If an enterprise agreement applies, the Fair Work Commission can arbitrate surveillance disputes, and workers who are dismissed following intrusive surveillance may be able to challenge the dismissal as unfair. Workers who are unaware of their employer’s surveillance practices can also file complaints with relevant authorities or regulators.
To effectively navigate the “new normal” work landscape, it is crucial to bridge the gap between existing legal protections and the capabilities and potential harms of electronic monitoring and surveillance. Currently, this remains a significant legal and ethical challenge.
