Workplace surveillance and employee monitoring on the rise
British and US surveys have found that since Covid lockdowns, when many more people started working from home, the number of businesses that undertake workplace surveillance and monitor employees’ activities is estimated to have more than doubled.
A UK Trades Union survey found one in seven workers said surveillance had increased since the start of the pandemic.
A 2022 investigation by the New York Times found 80 per cent of workplaces were now using surveillance technology to monitor employees. (Please see The rise of the worker productivity score, The New York Times, 14 August 2022.)
What is workplace surveillance?
Workplace surveillance involves monitoring and collecting data on what employees are doing, typically via software installed on their computers.
Some monitoring programs record keystrokes or track computer activity by taking periodic screenshots. (Please see One in five tech workers subject to workplace surveillance, ComputerWeekly.com, 25 October 2022.)
Other software can record calls or meetings, even access employees’ webcams to check on what they are doing.
Is workplace surveillance legal in Australia?
So, what does Australian law say about workplace surveillance? Can an employer watch every move of their employees? If they are working from home, can the employer check on them via the computer’s camera, monitor key strokes, check website activity, even listen in on their office phones?
The Office of the Australian Information Commissioner provides some information on what is allowed in regard to surveillance in the workplace. (Please see Workplace monitoring and surveillance, OAIC, 8 March 2023.)
The Commonwealth Privacy Act 1988 mainly deals with binding governments and businesses to keep secure the personal information they collect of citizens and does not concern surveillance in the workplace.
In NSW, there are two acts concerned with surveillance: the Workplace Surveillance Act 2005 and the Surveillance Devices Act 2007. Both acts cover some of the same territory, but the latter act makes clear that it defers to any act more closely regulating surveillance.
The Workplace Surveillance Act is the legislation applying to workplaces, which can include homes if a person works as an employee in a home. It permits the monitoring of employees in the workplace, provided they have been formally notified, and a monitoring policy is in place.
Employees must be told what is being monitored and this must be explained in a way they understand. This includes monitoring computer screen activities, keystrokes, websites and emails on company-owned computers.
Is it legal to monitor or record phone calls or videos in Australian workplaces?
Recording or monitoring a workplace phone conversation without the parties’ permission is not legal.
Video surveillance of a workplace is generally legal, but not in areas deemed private, such as toilets and changing rooms.
Private emails on work devices can be accessed by the employer for productivity checks and security, as long as employees are aware of this through a clear company policy.
Employers can also access an employee’s private computer or phone within company premises, as long as employees are aware of the monitoring and consent to it and written notice is given 14 days before the monitoring starts.
Does workplace surveillance lead to higher productivity?
Businesses should be warned some studies have found intense hi-tech workplace monitoring doesn’t necessarily increase productivity. It can leave businesses valuing what they can measure of their employees’ workplace activities, rather than measuring what they value, such as a worker’s productivity and contribution to the firm’s success.
Some surveillance technology has reached the level that some sensors even record the number of minutes someone’s eyes look away from their computer screen to peer out the window or at a co-worker.
This type of close monitoring can lead to workers doing non-productive work, such as sending reams of emails or jiggling a computer mouse simply to look busy while achieving little.
Workplace surveillance can damage morale and culture
Professor Karen Levy of Cornell University, author of a new book on workplace surveillance, said intense monitoring of workers often leads to less productive work as employees concentrate on satisfying the monitor.
She found close monitoring increases stress, leading to resignations, particularly among experienced employees. (Please see Why AI surveillance at work leads to perverse outcomes, Psyche, 25 January 2023.)
A BBC report earlier this year quoted a German study that found increasing surveillance of employees had no positive effect on their performance and instead damaged workplace culture. (Please see How worker surveillance is backfiring on employers, BBC, 30 January 2023.)
Employers would be wise to get legal advice before embarking on workplace monitoring. A worker who wants to challenge the surveillance should also first get legal advice, as the laws concerning workplace surveillance are spread across several acts and there are now court cases that have interpreted those laws.