Employee Privacy & Employer Responsibility in the Remote Workplace
| By 3P INSIGHTS |
The mass transition to remote work in 2020 has reignited a conversation about employee privacy rights in the workplace.
In early December, Microsoft announced in a blog post that it will no longer report individual user behavior through its Productivity Score tool and that instead, it will only report aggregated data to organizations. The feature was part of the Microsoft Teams platform, providing employers some insight into their employees’ behavior when using the software. It ranked individual employees on an 800-point scale, determining how employees were doing on key activities like sending emails, writing internal company posts, or responding to messages.
The feature also shared smaller data points, such as whether employees turned on their camera or shared their screen during meetings. As reported by Business Insider, it could track whether employees logged into meetings through the desktop app or a mobile app, helping mangers determine whether someone was in fact working from their “home office” or if they were signed in on the go. Although Microsoft will continue to collect individual data, public backlash regarding invasive practices prompted Microsoft’s decision to withhold that data from organizations moving forward. The move by Microsoft has been welcomed by critics who argued that the Productivity Tool feature crossed the individual privacy line. It has also reignited conversations about privacy rights for remote workers.
Remote Worker Privacy
Nearly half of the U.S. labor force has been working from home as a result of the COVID-19 pandemic. Although workers may feel like their privacy has increased since they aren’t in the office, and perhaps not under direct supervision, privacy concerns may be at an all-time high. It probably comes as no surprise that employers can monitor employer-provided electronic equipment, including what employees type, what web pages they visit, and their work email. Employers can also monitor employee activity when on their networks, which means that even if employees are using their own devices (e.g. tablet, laptop, cell phones, etc.), they have very little right to privacy.
This is particularly important at a time when many employers have asked employees to use their personal computers or cell phones in the rapid shift to remote work. Understandably so – many employers had no intention of having people work from home before March 2020. Even before the pandemic though, roughly 60% of U.S. companies had bring-your-own-device (BYOD) policies that allowed employees to bring their own laptop, tablet, smartphone, and so on to work and connect to the company network.
While for some, these BYOD policies actually make life a little easier because it can be more convenient to do everything – work and personal – on one device, Stephen Robbins and Timothy Judge, authors of Organizational Behavior, offer a word of caution. They point out that employers can wipe personal devices clean, remotely, with no warning, when employees are terminated or when they believe there has been a data breach. They cite one instance where a health-care consultant lost his apps, contacts, personal email accounts, photos and music after his organization experienced a cyber breach and decided to wipe all devices clean, leaving his phone “like it came straight from a factory.”
In their 2017 paper “Limitless Worker Surveillance,” published in the California Law Review, Ifeoma Ajunwa, Kate Crawford, and Jason Schultz suggest that workplace surveillance has become a “fact of life” for the American worker. Of particular concern in privacy law are the diminishing costs of rapid technological advancements, which means that employee surveillance occurs both inside and outside of the workplace. The authors cite a 2015 instance when a woman was fired after she deleted an employee tracking app from her work phone. The app recorded her movements at all times, even when she was no longer at work and had the app switched off. Interestingly, the authors conclude that although employee monitoring is nothing new, we are experiencing an unprecedented level of “participatory surveillance,” wherein workers are expected to aid their employers’ monitoring efforts by using productivity applications and wellness programs.
Employers are also increasingly asking their employees to use social media channels to promote their organization. Social media is another platform where employers can monitor employees. Employers may even penalize someone for their social media post regardless of whether it was written on their own time, on their own device, and even if their account is set to private. If the employer catches wind of the post and they don’t like it, provided the post is not about legitimate workplace grievances, they may be able to legally reprimand employees.
Navigating the New Normal
Ultimately, employers have good reason to monitor their networks and devices. Security and ethical concerns give employers an incentive to make sure employees are behaving in a way that not only complies with their workplace code of conduct, but also protects sensitive data from getting into the wrong hands. This is especially important for organizations in highly competitive and dynamic operating environments. Microsoft also pointed out that the Productivity Score software helps organizations navigate the new normal and pinpoint where they may be experiencing productivity lapses in remote work. For example, they cite a 2018 study commissioned by Microsoft that suggests people can save up to 100 minutes per week when they collaborate and share content in the cloud (rather than sending emails).
As we rise out of the hardships of the pandemic (which has arguably brought new challenges for employers and employees alike), workers should be cognizant of the potential consequences of using their own devices for work-related content. Does their employer have a BYOD policy? If so, what are the stipulations and what exactly are they monitoring?
Employers considering the adoption of remote or flexible work arrangements post-pandemic should also consider issuing devices for their employees to use while working from home. It is worth noting that some states may require employers to reimburse employees for a portion of the cost associated with their personal devices used for work (e.g. paying a portion of the cell phone bill). Although issuing devices certainly adds to operational costs, it should be viewed as an investment that helps protect the integrity of organizational networks. It may also be the more socially responsible option, offering employees a little more privacy protection in the remote workplace.
3P INSIGHTS is a consulting firm that offers training, speaking and support services to help organizations attract and retain diverse talent, create inclusive workplaces, become better environmental stewards, and improve their overall social, environmental, and economic impact.
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