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Checking on employees in the age of working from home has legal consequences for businesses to consider.
Corporate surveillance – the use of digital tools for employee monitoring – is not a new concept and there certainly is no shortage of tools available.
However, following the global outbreak of the coronavirus, companies have increased their useof these tools – mainly to stem the initial fear of productivity losses when thousands of people started working from home. Companies are well advised to take all the legal and ethical considerations into account when introducing additional surveillance tools.
Although something is legal, one should not jump to the conclusion that it is ethical, says Deon Rossouw, CEO of the Ethics Institute. “Apartheid was legal, but it certainly was not ethical.”
SA legislation
In South Africa employers are generally permitted to monitor employee performance and productivity. The applicable pieces of legislation for the surveillanceof people and their electronic communication include the Protection of Personal Information
Act (POPIA) and the Regulation of Interception of Communications and Provision of Communication- related Information Act (RICA), notes Nozipho Mngomezulu, partner in the technology, media, telecommunications and intellectual property practice of law firm Webber Wentzel.
In terms of POPIA, employees should be made aware that their performance and productivity is being monitored by the employer and the employer should provide reasons for doing so to the employee.
RICA prohibits the interception of communications unless a specific exemption can be established. According to Mngomezulu, a business may intercept any indirect communication whenit relates to the business or takes place during the carrying on of the business.
Lenja Dahms-Jansen, a senior associate in the employment and benefits division of Bowmans, says any person who is convicted of an offence in termsof RICA, which includes unlawfully intercepting a communication, may be liable to a fine of up to R2m or a prison term not exceeding ten years.
Notwithstanding the exceptions, employers do not have an unrestricted right to monitor employees’ behaviour, she warns. Employers may not require employees to grant them access to their private email or social media accounts or seek to gain access to such private accounts by unlawful or dishonest means (by hacking the accounts or creating impersonation accounts).
“It would not, however, be unlawful or unethical for an employer to access an employee’s social media profile in circumstances where the profile is open to the public, as no privacy settings are in place,” says Dahms-Jansen.
Baker McKenzie’s employment practice head, Johan Botes, says the employer will always be on the back foot if they are found to have collected and stored private information that is clearly not work related, even if it was done on the company network or during office hours.
“However, the employer will be allowed to collect and retain data during a time when the employer had a reasonable expectation that their employees should be furthering their business interests,” says Botes.
Good practices
Monitoring internet sites visited to see whether they are unwarranted or prohibited in terms of company policy is permissible. In many instances the employment contract also provides for a general consent in terms of the monitoring of electronic communications for business purposes.
“A good practice in this regard is to reinforce the message through continued notifications of the terms and conditions in the employment contract. The intention behind this is to ensure that employees have a reasonable expectation and appreciation at all times that their electronic communication activities are monitored,” says Botes.
He adds that as a rule, the employer should refrain from monitoring employee activities ‘after hours’.This will certainly erode the ‘business rational exception’.
Even if there is more fluidity in working hours and the employer may meet the legal threshold to monitor employee communication after hours, the question is whether it is ethical to do so, says Botes.
Erosion of trust
Rossouw says there is a case to make for surveillance, but then it should deal with increased safety and protection against loss or damage.
Besides having a negative impact on the morale
and commitment of people, it also undermines trust.
“You are basically telling your employees that youdo not trust them, and you are going to watch them.
And you are going to do it even in the privacy of their
own homes,” says Rossouw.
Anastasia Vatalides, head of Werksmans Attorneys’ labour and employment practice, agrees. “Employers cannot become policemen and women.”
Obviously not everybody is professional and driven. There are those who will leave early or take longer lunches and chat endlessly with colleagues when the manager is not in the office.
“Those issues have also manifested in this virtual environment and in some instances, they have been exacerbated by excuses, such as load shedding or poor connectivity to exploit the situation,” says Vatalides.
The alternative
Rossouw says corporate surveillance is typically extrinsic motivation or fear-based compliance.The alternative is intrinsic motivation, wherepeople do the right thing out of conviction and not because someone is watching. They understand the purpose of the organisation and what their role and responsibilities are to achieve it.
“In these instances, you will often find that people are working too hard, not because of over-surveillance, but because of over-motivation.”
