March 9, 2021
Authors
The monitoring of employees by employers is not a new phenomenon, but it seems to be entering a distinctly new phase.
Today, it is increasingly common practice for large companies to implement employee monitoring, whether to increase productivity in warehouse distribution roles, maintain quality control in manufacturing, or bill accurately at consulting firms.
The COVID-19 pandemic has seen the sudden move of many millions of workers around the world to home-working—and this has accelerated the use of tools designed to monitor workers in new and even more invasive ways that respond to the unique conditions of a pandemic. Techniques such as screen capture, measuring keystrokes, webcam photos, and web monitoring are being used to “prove” employees at home are meeting employer expectations.
All workers face these risks with the rise in use of technology in the workplace. However, workers in low-income jobs, with insecure employment status, or irregular schedules are particularly vulnerable, and women and people of color make up a disproportionate share of these types of jobs.
Despite this widespread use of workplace monitoring already taking place, there is no internationally recognized framework governing how these tools can be deployed in a rights-respecting way. While the International Labour Organization (ILO) published a non-binding code of practice to provide guidance on the protection of workers’ personal data in 1997, there is no ILO convention or recommendation covering workplace data protection, privacy, and non-discrimination issues in a modern setting.
Employers need to consider several human rights impacts that may arise from workplace monitoring tools when implementing such technologies in the workplace:
- Erosion of privacy: There are legitimate reasons why employers need to understand what their staff are doing—such as legal obligations to ensure that sensitive data isn’t stolen or leaked. However, many emerging tools are far more intrusive and risk collecting, storing, and processing personal information that is not work related (such as movement) and use methods where employees may not be aware that monitoring is taking place (such as remote activation). The right to privacy should only be interfered with in ways that are lawful and non-arbitrary, meaning that any compromise has a legitimate purpose and is both necessary and proportionate for that purpose.
- Non-discrimination: New digital tools could accentuate existing workplace discrimination and increase risk for workers from vulnerable groups or marginalized populations. For example, monitoring how many times employees leave their desk during the workday could be paired with automated performance review processes and result in poor reviews, employees being passed over for promotions, or even termination. This disadvantages people who need to leave their desks for prayer or physical disabilities, among other things. The use of "affective technology"— purporting to identify individuals’ emotions by providing insights on an individual’s facial expressions or body language during hiring or performance reviews—present significant risks of discrimination based on gender, race, ethnicity, or other physical characteristics.
The right to privacy should only be interfered with in ways that are lawful and non-arbitrary, meaning that any compromise has a legitimate purpose and is both necessary and proportionate for that purpose.
- Informed consent: Informed consent is an essential concept in the digital sphere and is defined by both participation (i.e. the ability to participate in decisions) and empowerment (i.e. the ability to understand both risks and rights when consenting).
- Power imbalance: The severe economic downturn accompanying COVID-19 will alter the balance of power between employees and employers as unemployment rates rise—workers are much less likely to raise concerns about potentially intrusive surveillance being deployed or choose not to use it while they are concerned about the safety of their jobs.
- Human dignity and agency: The increasing use of digital tools to collect data and inform decisions raises novel issues around human dignity, autonomy, control, self-worth, and well-being, such as whether employees should reasonably expect to have their movements tracked as a metric to gauge productivity or whether insights into employee motivation, energy, and workplace satisfaction derived from psychological or sentiment analysis are a reasonable expectation of employment.
- Freedom of association: There are implications for the morale and motivation of a workforce that is being monitored as it is likely they will conclude that their employers don’t trust them. Some tools can also be used to effectively control what employees discuss, e.g. online content moderation tools that prohibit employees from using words such as “unionize” in online work chats.
COVID-19 has turbocharged the trend of increased monitoring of employees at work. And post-COVID "back to work" planning has included monitoring of employees’ health, which is some of the most personal data employees have.
More work needs to be done to understand the impact of this kind of monitoring in different types of workplaces to lay the groundwork for the development of an international standard. BSR plans to lead this process, which must be centered on workers themselves: engaging with workers and the groups that represent them is essential. Our goal is to develop actionable guidance on how companies can implement workplace monitoring in a transparent and limited way that protects the rights of individuals and that this is developed through multi-stakeholder dialogue and engagement. We invite companies, donors, and industry and worker groups to join us in this process.
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