Employee Surveillance: Business Efficiency Vs. Worker Privacy - InformationWeek
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3/21/2016
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Employee Surveillance: Business Efficiency Vs. Worker Privacy

Legal scholars argue that new laws are needed to define the parameters of acceptable workplace monitoring and to ensure respect for personal privacy.

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Supervision of employees used to have limits. Managers simply couldn't watch every employee all the time.

That's no longer true today. As discussed in a draft of a forthcoming California Law Review paper, technology enables pervasive and invasive monitoring. And as dispersed workforces become more common, there's more incentive to rely on technology as an alternative to face-to-face interaction with managers.

"Now, with the advent of almost ubiquitous network records, browser history retention, phone apps, electronic sensors, wearable fitness trackers, thermal sensors, and facial recognition systems, there truly could be limitless worker surveillance," the paper says.

Companies have a right and an obligation to operate efficiently. Some oversight of employees is undoubtedly necessary. But as legal scholars Ifeoma Ajunwa, Kate Crawford, and Jason Schultz argue in "Limitless Worker Surveillance," unrestrained surveillance raises privacy and discrimination concerns.

Sometimes it's easy to see when workplace surveillance goes too far. The paper cites the outrage that followed at The Daily Telegraph in the UK when workers discovered "OccupEye" sensors that had been placed under desks to track worker attendance under the pretense of gathering energy efficiency data. The outcry ultimately ended the project.

(Image: Pixabay)

(Image: Pixabay)

But the issue can be more nuanced. The paper refers to a May 2015 Ars Technica report about a woman who was fired after she deleted the Xora employee tracking app from her phone. Her legal complaint asserts that managers monitored her movements even when not at work.

The defendant in the case, Intermex, responded to the woman's allegations in July last year, arguing that the plaintiff had consented to the use of the Xora tracking application on her company-provided phone and that she had violated company policy by failing to turn off the Xora app (now called StreetSmart by ClickSoftware) during non-working hours despite being trained to do so.

What's more, Intermex claims she worked for another company while working at Intermex, holding two full-time positions in violation of Intermex's conflict of interest policy. The plaintiff's complaint claims that the woman's supervisor had accepted this arrangement so that her medical benefits from her prior employment would remain in effect until coverage from Intermex took effect.

The two paries settled on Oct. 30, 2015, and the case was dismissed thereafter.

While the line between appropriate and intrusive workplace surveillance may not always be obvious, the paper points out that surveillance for the sake of business efficiency can have the opposite effect. "Too much monitoring creates stress, fear, and incentives to 'beat the system,'" the paper says.

The authors argue that workplace surveillance has moved beyond a legitimate interest in productivity to shaping individual behavior. As examples of this trend, they cite productivity apps and corporate wellness programs.

Apps like Xora, for tracking employees, and BetterWorks, which encourages productivity through the gamification of project goals, normalize and incentive surveillance, the paper contends. They make monitoring seem progressive by advancing the conceit that surveillance leads to innovation and growth, while ignoring the cost to individual rights.

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Wellness programs raise related concerns about workplace discrimination and data privacy, particularly since some companies now make them mandatory. Companies that collect health data from wearables can do so without oversight, the paper notes, and that data, when it flows through a corporate-owned device, belongs to the employer rather than the employee. 

This all may sound abstract, but behavioral data can have specific employment consequences. For example, in nine states employers can fire workers for smoking outside the workplace.

The authors state that worker surveillance is limitless because no federal laws directly address the issue. Thus they propose new legislation, an Employee Privacy Protection Act, that would limit workplace surveillance to actual workplaces and would prohibit agreements that waived such privacy rights. They also suggest a similar law is needed for worker health data.

"While employers have a reasonable interest in ensuring the productivity of their workers and in dissuading misconduct in the workplace, that interest does not outweigh the human right to privacy and personal liberty in domains that have been traditionally considered as separate from work and the workplace," the authors conclude.

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful ... View Full Bio

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Broadway0474
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Broadway0474,
User Rank: Ninja
3/29/2016 | 11:00:03 PM
Re: Keep it Simple
That's very interesting, Vnewman. So it's less your employer going overboard as it is them following the letter of the law, which may have gone overboard. I know ... the distinction doesn't mean as much if you're dealing with it in first person!
vnewman2
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vnewman2,
User Rank: Ninja
3/28/2016 | 12:15:14 PM
Re: Keep it Simple
True.  Except when the laws in the state which are meant to protect us are so stringent, that it does the exact opposite.
Broadway0474
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Broadway0474,
User Rank: Ninja
3/27/2016 | 10:52:32 PM
Re: Keep it Simple
vnewman, I thought the power is now in the hands of talent and that employers have to treat us with more and more respect, and benefits --- including flexible work arrangements?
vnewman2
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vnewman2,
User Rank: Ninja
3/24/2016 | 7:41:21 PM
Re: Keep it Simple
@SaneIT - Precisely.  Corporations need to ask themselves: what's the end game here?  What's your reasoning for implementing big brother practices?  What good is going to come of it?  If you have an otherwise productive, well-liked, bright, resourceful employee are you going to stalk them until you find them doing something you don't like?  There's a saying, "What you look for, you will find."
vnewman2
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vnewman2,
User Rank: Ninja
3/24/2016 | 7:22:33 PM
Re: Keep it Simple
@Broadway - can you imagine?  This incident has happened to other folks I have heard and it seems to take place soon after you were hired, so my guess is they are trying to put the fear of God in you so you walk the line.

Now, I work in California where the employee-rights laws are very strict and HR needs to ensure that the time we submit in our "time sheets" (can you say archaic much?) matches the time we actually work.  This is a concept that belongs in the stone age.  Should I subtract the minutes I daydream from my "time sheet?"  Can you monitor that?  (One day...probably).

I had the HR Assistant say to us once, "Anytime you buy something on Amazon, etc, that counts as part of your breaktime."  I mean, come on now, I buy most everything on Amazon faster than you can say "Jack Robinson." It's inane to me that someone would think that is part of taking a break when you are a white-collar information worker.
jries921
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jries921,
User Rank: Ninja
3/24/2016 | 11:23:45 AM
Fanaticism is frequently its own punishment
It seems to me that time and money spent on surveillance are time and money that are not spent on producing useful goods and services that customers are willing to buy; and that only employees with nowhere else to go are likely to tolerate tracking software on their personal devices.  If an employer wants to drive out all of his most marketable empoyees and be left only with the demotivated and desperate, I can think of no better way of doing so than to turn the workplace into a police state, except perhaps to extend the surveillance into employees' private lives.
SaneIT
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SaneIT,
User Rank: Ninja
3/24/2016 | 8:27:43 AM
Re: Keep it Simple
This is something that I would like every employee to take a few minutes to think about.  If I or someone from my team is going to spy on you, watching your every move then we are getting nothing done all day long.  To watch you and log everything you do while doing their job at the same time would be a miracle.  I've spent weeks tied up in situations where an employee's activity had to be reported on and not only was it incredibly time consuming it was incredibly boring.  Although your Amazon purchases may be exciting to you, I'm really not interested in your purchasing habits and would rather be doing anything other than playing network detective. 
SaneIT
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SaneIT,
User Rank: Ninja
3/24/2016 | 8:23:58 AM
Re: Keep it Simple
@TerryB, I'd count yourself somewhat lucky that flexibility is not quite normal yet and practically unheard of for most roles in any company.  I've been doing remote access for 20+ years in some sense but there is always the expectation of a minimum of 40 hours in the office.  I have never worked for a company where everyone went home at 5PM so in all the years I've been in an IT role I've never known what it is like to stop working based on a clock.  I do keep my office hours very strict because if I don't it would be easy to fall into very long days.  As it is I log in before leaving for work so I can prioritize my day during my commute.  Right now I see the expectation of flexibility as a one way street, even in companies that from the outside look to give employees a great deal of leeway. I left a job 10 years ago where flexibility meant someone will be calling you at 3AM at least 3 times a week but your office hours are 9 to 6 at a minimum without exception. 
Broadway0474
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Broadway0474,
User Rank: Ninja
3/23/2016 | 11:42:24 PM
Re: Keep it Simple
vnewman, I tell you what, your company definitely doesn't outsource its security, and if it does, the vendor is doing an amazing job. But seriously, doesn't your company HR have more things to worry about? Healthcare reform and employee benefits? Defined-benefit pension plans in this tumultuous market? Scarcity of talent and hiring lazy millennials??!!
vnewman2
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vnewman2,
User Rank: Ninja
3/23/2016 | 9:22:07 PM
Re: Keep it Simple
On another note, at my firm, we have keycard access to get us into the parking lot and also the elevator banks for security reasons after someone threatened one of our employees.  One day I left my car in the garage overnight because the battery died.  I got called to HR to ask why I didn't swipe out and had to explain precisely what happened.  (I took an uber home, AAA came the next day with a new battery, etc.)  I was completely shocked over that level of surveillance.  It still leaves a bad taste in my mouth - they made it very clear they are watching.
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