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Adventures in Privacy...

As return-to-work and hybrid scheduling continues into 2022, considerations for how employers monitor productivity without breaching privacy and confidentiality issues are becoming a bigger issue.

Other factors include the powerful new technologies that continue to emerge, and the increased use of that specific technology in the workplace; creating new concerns for both employers and employees on the subject of privacy.
Employers that want to implement certain surveillance tools may be breaching privacy boundaries for employees; however, there are certain legal circles that advocate for surveillance tools that are legal.

As more and more employees become permeant telecommuters, the lawmakers must address the question of whether the rules for the workplace are extended to the home and the boundary-less workplace.

The problem is that the line between work and private life has become concerningly thin and blurry in recent years. It is not easy to tell when the workday is over because many employees continue working or discussing work issues with colleagues even after leaving the office.
Remote employees, the number has significantly grown over the years since the start of the pandemic, often enjoy the privilege of flextime. Vague work schedules make it nearly impossible for the manager to set strict time frames for monitoring the team's performance without the risk of accidentally spying on their lives.

Privacy & The Law:

Every country or state has its own laws governing workplace privacy laws. Some states have taken a strict view on employee monitoring and other aspects of privacy, while others have a more liberal approach.

The U.S. lacks a comprehensive privacy law, despite increased interest in privacy and data protection in recent years. Privacy protection in the workplace can be found in a variety of sources.

On the federal level, the Fourth Amendment of the U.S. Constitution protects citizens against unreasonable search and seizure of their person or belongings without a warrant issued by a judge stating probable cause.

The Electronic Communications Privacy Act (ECPA) of 1986 enables workplace monitoring, considering that businesses have a legitimate reason to do so.

Most privacy legislation in the U.S. is enacted at the state level. Many states have privacy legislation on employment privacy (drug testing, background checks, employment records), SSN, medical records, etc.

Employee Monitoring:

When implementing employee monitoring, employers
must be mindful of the importance of maintaining a private and secure work environment for their employees. For instance, after-hours monitoring can be a source of stress for some employees and may lead them to quit the job. Also, employees should be allowed to work without fear that their privacy is being compromised and the management illegally accessing their personal information.
The graphic above illustrates what businesses use employee monitoring and surveillance tools to monitor in their respective workforce.

Advancements in Technology:

Technological innovation has outpaced our privacy protections.
Companies have the legal ability to use keylogger software on business computers, deploy video surveillance cameras, monitor worker attentiveness, track physical movements through geolocation software, compile lists of visited websites and applications, monitor emails, social media posts, and collaboration tools, and compile productivity data on how employees are spending their time and how long it takes them to finish specific tasks.

Some potential benefits of monitoring some employee activities:

- Helps to uncover problems, like harassment
- May reduce theft
- Discover where workload may need to be redistributed (i.e., when some groups have too much time for non-work activities)
- Help to monitor and ensure safe practices are being followed
- Reduce incidences of employees wasting company time, as they know they’re being monitored and are then less likely to do so
- Allow employers to monitor employees’ activities to ensure they’re being productive and following rules
- Track hours worked on a specific task, which can increase accuracy for invoicing
- Help with record-keeping, such as tracking employee time
- Monitor customer interactions to ensure policies are being adhered to and customers are being treated well

Naturally, there are also many potential drawbacks to employee monitoring:

- Employees may feel their privacy has been devalued or violated
- It may be difficult to retain employees if monitoring seems intrusive
- Monitoring can signal a lack of trust, which can breed resentment and reduce employee morale and productivity
- The line between work and home may be blurred; people often use the same devices for both
- Extra data means more info could be misused if it lands in the wrong hands
- There are legal issues to contend with to ensure the employer remains within legal rights and respects employees’ rights
- The more geographic areas the employer operates in, the more likely these regulations will differ in each area
- Any monitoring program is only useful if it is scrutinized, which takes time and money
- Surveillance may create a false sense of security, which can actually be a risk in and of itself
There is a struggle for a comprehensive federal law in the U.S. regulating the extent to which employers can monitor employee in the workplace. Most privacy and workplace monitoring policies are governed by a wide range of state laws that often contradict each other, are too ambiguous, or simply not advanced enough to keep up with technology.

With the prevailing issue of cyberattacks and the increasing need for workplace accountability, organizations weigh in on the advantages & disadvantages that employee monitoring tools accrue.

This clash between employer and employee perspectives regarding workplace privacy will continue to exist.

MJ-LEL Capstone © 2022 by Jessica Finnegan is licensed under CC BY 4.0
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