Can your boss use electronic surveillance to monitor you when you’re working from home?
14th Apr 2022
We know the boss can monitor everything we do in the workplace, whether they do it in person or via electronic surveillance. They can keep tabs on your computer use, time spent in the tearoom, smoko breaks and long boozy lunches. They can also track websites you’ve visited, chats with colleagues or phone calls to friends and family.
But what about when we work from home, as many of us have been doing since the start of the COVID-19 pandemic?
With a lot of people now finding it preferable to work from home, employers are faced with many workers wanting to continue this practice, long after restrictions are lifted.
How far can employers go to track employees who work remotely?
So, to what extent can employers monitor our movements when we work from home? Is the boss entitled to know if we have a glass of wine next to our computer while we work?
Can we step away from the desk to look after the kids or do the washing? What about checking social media during work hours, watching an afternoon movie, or looking at websites not related to work?
Workers must be given 14 days’ notice before electronic surveillance is installed
Under s10 of the NSW Workplace Surveillance Act 2005 (NSW), workers must be notified by the employer of any intended electronic surveillance 14 days prior to its installation. The surveillance must also be clearly spelt out as part of company policy.
This includes computers with tracking devices and cameras, which the employer has paid for or provided to an employee to use when working from home.
Is covert surveillance legal?
The Workplace Surveillance Act states that any covert surveillance first has to be approved by a magistrate, and only if the employee is suspected of unlawful activity such as theft.
The magistrate also has to consider whether the covert surveillance would ‘unduly intrude’ on the employee’s privacy.
Section 20 (3)(a) of the Workplace Surveillance Act expressly rules out covert surveillance of any employee for the purpose of monitoring the employee’s work performance.
Employee-monitoring tech evolving faster than privacy protection laws
While there have been huge advances in technology that can monitor what an employee does, both in the workplace and while working from home, the law has struggled to keep up with the rapid evolution of electronic surveillance.
For example OccupEye – a small box that sits on a worker’s desk recording every time they leave and for how long – is legal, as long as employees are told about it and what it does 14 days prior to installation.
Electronic surveillance data provides daily productivity scores
Electronic surveillance software can be installed on a worker’s computer to feed data back to the boss. It can record when you log in and out, every website you visit and for how long, as well as screenshots of what you are viewing.
There is also software that can record your movements via a phone app, log in and view your computer live, as well as monitor and search for keywords in your emails.
Some programs crunch this data to give a daily ‘productivity score’. One US company, Controlio, which sells monitoring software in Australia, says business has been booming since the COVID-19 lockdowns. Again, the use of this electronic surveillance is legal, as long as employees are told about it.
Electronic surveillance and privacy laws
So, does employee monitoring go too far? Clearly privacy laws have not kept up with this type of surveillance technology. Controlio can be installed secretly, and the data is kept in US storage, where it may be beyond the reach of Australian privacy protection laws.
Furthermore, this type of electronic surveillance is worse for employees than having a boss stand over their shoulder all day. It is a means of exerting power over an employee, imposing domination and enforcing subservience.
Knowing that every keystroke is monitored and every break from the desk is recorded could increase anxiety and mental health problems for workers.
This in turn could lead to mental illness and breakdowns, not to mention a rise in workers compensation claims.
This is an edited version of an article first published by Stacks Law Firm.
The ALA would like to thank Anneka Frayne for this contribution.
Anneka Frayne is the Director of Stacks Law Firm in Tamworth, working in family law, wills and estates, and disputes and litigation.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).