With the onset of the COVID-19 pandemic in the United States this past March, millions of Americans shifted to remote work almost overnight. Corporate office buildings across the country were shuttered as stay-at-home-orders forced workers to turn their living rooms, bedrooms and basements into their workspaces. Faced with this new reality, the ensuing economic downturn and the pressure to continue to run teams efficiently, many employers turned to digital monitoring surveillance software to track their employees’ work productivity from home.
Villanova Law Associate Professor J.S. Nelson, an expert on business law and ethics, is researching workplace surveillance as the pandemic continues to change where and how people work, perhaps indefinitely. “Moments of crisis, like a pandemic, start to define relationships of employees with their employers,” said Nelson. “If employers treat employees well during a crisis, they will stay around, be invested in the community and help the company grow.”
Surveillance software allows companies to track a variety of metrics remotely, which could include the time spent on tasks in specific programs, recording of phone calls and chat conversations, email scanning, as well as taking photos of employees at various points throughout the day in their homes. As some employees start to return to the office, new surveillance systems in place can monitor facial expressions to gauge emotional reactions and heat maps can track employees’ movement within a building.
“New technologies come out and are spun with a pandemic-related aspect to them, but then you find out they are truly being used for other things after the initial rollout,” said Nelson. “Once tracking software is installed in a building or on a device, even a personal cell phone, there is not much impetus for an employer to remove it, and there is no check on what the employer can record. Even when COVID ends, this new surveillance won’t.”
The surveillance of employees is legal under federal law. Employees must disclose to employees that there is a possibility they will be surveilled, but employers are not obligated to disclose to employees how they are being monitored. A simple line in an employee manual about the potential for surveillance is often sufficient legal notification.
Nelson stresses that instead of surveillance and data collection, employers should look to a more holistic style of management that does not rely on oversurveillance as a crutch. Quality management includes a focus on intangible skills such as communication. Conversations with employees about workload balance, project priorities and personal obligations during a crisis can build an employee’s trust and dedication to an organization.
“There are many things that need to be managed, but can’t be measured, and oftentimes you can’t measure them until they are gone,” explained Nelson. “Things like employee ethical engagement, loyalty, morale, teambuilding, and enthusiasm for direction of the company, are key, and they are commonly at the heart of performance and productivity.”
“Additionally, oversurveillance typically drives out an organization’s best employees, and it creates discriminatory patterns that fall hardest on women, minorities and those of different sexual orientations,” added Nelson. “The people who bring the most care, diversity, and varied thought perspective to a team are being driven out first and fastest. Diversity on a team is proven to be profitable; you can put a dollar amount on that. And at the same time, you can put a dollar amount on the cost to a company of people leaving—at a minimum between 90-200% of a person’s salary.”
The pervasive collection of big data on employees continues to grow in myriad ways, blurring the lines between work and personal lives. Employers seek data that they believe will help drive the bottom line, but their actions may actually be more harmful in the end.
“This is a time for both employees and employers to think about whether, how, and why we use these surveillance tools, and in what context,” added Nelson. “Their abuse is poisoning the dynamics of the workplace, at exactly the time when we need the workplace instead to change positively in so many ways.”