Posted by Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C. in News
Oct 17 2022
Way back when, before COVID-19 was even a thought (think of it!), I got my first taste of what it was like to work remotely. I had just given birth to our now eleven-year-old and discovered how much easier it was to tend to her needs while also tending to those of my clients in the place where board books and law books (yes, there were some of those back then) were both within reach. My partners trusted me to do what needed to be done to produce and I rose to the occasion. In fact, that year was my most productive yet with the firm. The paradigm had been completely shattered. Or so I thought.
A whole new set of lessons learned and paradigms obliterated were ushered in with the onset of COVID-19. Three months after it first reared its ugly head, I participated in my first virtual mediation. The case involved some of the most serious sexual assault allegations I had ever litigated and there were five defendants. I was dead certain that without an in-person connection the case would never settle. I was wrong. Not only did the case settle but it did so at a record high for me. Since then, of course, mediations, depositions, hearings and even trials have been conducted remotely on a regular basis. Many of us work in our slippers (with groomed hair and a clean shirt) and move fluidly from our home office to our kitchens to our children’s schoolwork/play spaces and back again. And we have managed it all pretty darn well, thanks to supportive and trusting colleagues.
Workers in other industries have not been as fortunate. As remote and hybrid work has become more widespread, so has the use of “bossware” or “tattleware,” software which allows employers to monitor their employee’s every move (or lack of movement) while working in these environments. The goal, of course, is to ensure that remote employees remain as productive in the privacy of their own homes as they are in their brick and mortar (and not so private) workplace. Questions loom large, however, as to whether all of this monitoring accomplishes that goal or impedes it.
Big Brother employers are inserting themselves into the physical workspace as well, ensuring that when a supervisor isn’t watching them electronic surveillance is. Similar questions as to the efficacy of this monitoring abound.
Indeed, some believe that bossware is counterproductive: “Without the freedom to make mistakes and take time to think about things, it’s harder for people to get work done” noted one recent article. Thorin Klosowski, How Your Boss Can Use Your Remote-Work Tools to Spy on You, The New York Times (Feb. 10, 2021). More importantly, employers who choose to use such technology can erode trust, perhaps the most critical ingredient in any successful relationship. “[W]hen you trust your people to do their jobs well, you create an experience for them that leads to the belief that they are more than capable of completing their work. This leads to deeper engagement, accountability and ownership.” Trust is More Effective than Employee Monitoring, Culture Partners (Aug. 8, 2022). That was certainly my experience.
Yet, according to a Gartner survey, 60% of companies with at least 1,000 employees who responded to the survey used monitoring technologies by the end of 2021. What gives?
Employers point to logistical challenges, particularly in hybrid work situations where there is a desire to keep track of employees’ presence in or out of the physical office by taking “attendance.” And it may be that some monitoring can result in organizations becoming more productive and streamlining business processes. A Forbes article noted some of the benefits: “If certain activities are taking too long, work can be outsourced to create business efficiencies and enable employees to focus on business generation. Productivity tracking technology also provides employees with an opportunity to demonstrate their hard work and ability to work autonomously.” Anna Shields, Employee Monitoring vs. Workplace Trust In An Age Of Remote Working, Forbes (Dec. 17, 2020). The article noted, however, that the scenario becomes more complicated when the monitoring “moves away from the macro-level to tracking individual metrics [because] conflict often flares up when people feel micromanaged.” Id. Moreover, monitoring is a one size fits all approach that will not consider that individuals who produce the same result may very well approach their work differently. These variations are “healthy in teams” and stifling them “can crush creativity and stifle genuine collaboration.” Id.
Some workplace experts go so far as to state that employers who use surveillance systems are failing to recognize a larger problem with the culture in the workplace:
It’s like hiring a soccer player and saying ‘I don’t care how many goals you score, I only care how many hours you train; . . . If a company is monitoring what days you’re going in, there are red flags. Why aren’t you evaluating employees on outputs, what they achieve?
Emma Goldberg & Lauren Hirsch, Should a Morning Staff Meeting Feel Like Homeroom? A Hybrid-Work Challenge: Monitoring Attendance, The New York Times (Apr. 22, 2022).
Nonetheless, there is no indication that bossware is going out of style. Indeed, numerous employers use them in one form or another. Bossware programs run the gamut from less invasive ones that merely track employees’ performance indicators or monitor when and for how long employees are active in business applications to the more invasive ones which track internet browsing history, log an employee’s every keystroke or remotely access employees’ computers and take screenshots to see what they are working on at any given time. At the most the extreme end, certain programs can even access employees’ cameras and take a picture or video of the employees themselves at their workstations, to monitor whether they are in their seats.
The implications for employee’s privacy rights are, in an understatement, disconcerting:
Since bossware can take periodic screenshots or record video, sometimes without an employee knowing, the software may incidentally pick up all sorts of sensitive information, such as medical or baking information . . . If the software uses machine learning to generate productivity reports, there are worries that any algorithmic recommendations stemming from it may reinforce social, gender or racial inequalities because of biased training data.
Unfortunately, existing laws provide little protection for workers subjected to bossware. There are no state laws shielding employees’ privacy from advanced electronic monitoring. Only three states, New York, Connecticut, and Delaware, even require that such monitoring be disclosed to employees. Several states, such as Massachusetts and California, are investigating privacy laws that may provide more protection from employer abuses of bossware in the future.
There is correspondingly little protection available on the federal level. While the Electronic Communications Privacy Act (ECPA) does contain electronic eavesdropping and wiretapping provisions, it also contains a consent provision that renders its prohibitions largely without teeth. Matt Scherer, Warning: Bossware May Be Hazardous to Your Health, Center for Democracy & Technology. The consent exception can be satisfied by mere disclosure in employee manuals or requiring employees to agree in writing that they will be monitored.
There are a few other federal laws presently in effect, however, that may shield employees from at least a few of the most intrusive invasions. For those who work in the brick-and-mortar workplace, the Occupational Safety and Health Act (OSH Act) imposes a general requirement on employers to maintain a workplace free from hazards and promulgates specific standards of health and safety that must be met. Id. With respect to bossware, the most relevant OSHA standard requires that employers provide reasonable access to toilet facilities. Id. This means that employees must be “able to use toilet facilities promptly” as necessary. Restrictions on access to toilet facilities “must be reasonable and cannot cause extended delays.”
Certain types of bossware may violate the OSH Act if they curtail restroom breaks or penalize employees for using the restroom when needed. Id. For example, programs that take a picture of the employee at his or her computer at prescribed intervals may deter the employee from using the restroom even if it is necessary to do so. Employees may also be reticent to step away from the keyboard when bossware is monitoring keystrokes or tasks completed per hour. This may have the effect of violating OSHA’s standard.
Enforcement is also problematic. An employee can file a complaint with OSHA, but the OSH Act itself does not create a private right of action. OSHA’s enforcement mechanism is largely limited to levying fines against employers, which can simply be paid while ignoring the underlying problem. Additionally, OSHA fails to address one of the most detrimental aspects of bossware because it has no standards related to the impact of monitoring on an employee’s mental health. Id. Finally, OSHA is essentially useless to remote workers because the Labor Department has ruled that OSHA will not inspect or take enforcement action for violations in home offices.
The Americans with Disabilities Act (ADA) provides somewhat expanded protections for disabled workers in that it at least contains a private right of action for enforcement. Id. Bossware may violate the ADA if it circumvents an employee’s already established reasonable accommodations, such as more frequent breaks or a decreased work pace. There are a number of qualifying disabilities that require such accommodations, but bossware tends to discourage their use by imposing an intense work pace that is inconsistent with periods of rest. Id.
Employers will likely be required to alter bossware’s strictures to accommodate disabled employees’ need for additional breaks or a slower pace of work. It would be difficult for an employer to demonstrate an undue hardship stemming from a modified use of bossware. This is particularly true because many employers operated without using bossware at all until the pandemic. Id.
Federal wage and hour laws may also be implicated if bossware automatically docks employees’ pay when they leave their workstations or spend time off task. Id. Many bossware programs require that employees leave a camera on at all times while at their workstation or monitor whether the employee is “active” in work applications. This has the effect of requiring the employee to be continuously present at their workstation, without breaks. The Fair Labor Standards Act (FLSA), however, requires that employees be paid for brief breaks taken during the workday or for short period when employees are not at their workstation. If bossware tracks employees’ time away from the screen and automatically docks their pay for those breaks, it likely violates the FLSA. Id.
Certain state constitutions may also provide some protection against the more intrusive uses of bossware, such as activating webcams to spy on workers without their knowledge. California and New Jersey, for example, have constitutional rights to privacy that extend to private employers. See Luck v. S. Pac. Transportation Co., 218 Cal. App. 3d 1, 17 (Ct. App. 1990); Soliman v. Kushner Companies, Inc., 433 N.J. Super. 153, 168 (App. Div. 2013). New Jersey describes its constitutional right to privacy as “the right of an individual to be. . . protected from any wrongful intrusion into his [or her] private life which would outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Soliman v. Kushner Companies, Inc., supra, at 168–69 (citing and quoting Burnett v. County, of Bergen, 402 N.J. Super. 319, 332, 954 A.2d 483 (App.Div.2008), rev’d, in part, on other grounds, 198 N.J. 408, 968 A.2d 1151 (2009) (internal quotation marks omitted). Certainly, undisclosed and unrestricted video monitoring of an employee at their home could be said to meet this standard. See Hernandez v. Hillsides, Inc., 47 Cal. 4th 272, 291, 211 P.3d 1063, 1076 (2009) (finding that even in the context of the employer’s workplace, employees may have an expectation of privacy: “employees who retreat into a shared or solo office, and who perform work and personal activities in relative seclusion there, would not reasonably expect to be the subject of televised spying and secret filming by their employer.”).
In sum, the laws that are presently in place are hardly sufficient to protect against the pervasive and intrusive effect of constant monitoring which invariably come with a significant cost to the employee’s privacy and well-being. Given the potential for serious consequences stemming from the use of bossware, it is surprising that there appears to be no reported litigation to date regarding an employer’s use of it. We should all stay tuned.
* * *
During this era of the Great Resignation and its sister, Quiet Quitting, which show no sign of sunsetting soon, it would behoove employers to explore ways in which they can forge powerful and lasting relationships with the people who work for them while, of course, maintaining productivity. When in doubt, they might want to consider devoting at least as much time to cultivating the former as they do the latter. The fact that these monitoring resources are widely available now should be only the beginning of a conversation about striking that balance, with the watchword “trust” tipping the scales.
For more information about post-pandemic workplace challenges, register now for PLI’s upcoming Psychological Issues in the Workplace 2022 program, scheduled for October 25, 2022.
Nina Pirrotti is a partner with the law firm of Garrison, Levin-Epstein, Fitzgerald & Pirrotti P.C. where she represents individuals in employment and civil rights litigation and negotiation. A past president of the Connecticut Employment Lawyers Association (CELA) and member of the National Employment Association’s Executive Board, Nina is well versed in all aspects of employment law. Nina has also litigated on behalf of students and faculty seeking to discharge their rights under Title IX, which prohibits sex discrimination and harassment in educational institutions receiving federal funds.
Betsy Ingraham is counsel with the law firm of Garrison, Levin-Epstein, Fitzgerald & Pirrotti P.C. She has tried more than twenty cases to verdict in Connecticut’s state and federal courts, winning a string of remarkable victories for her clients. In addition to her exceptional experience as a trial lawyer, Betsy has also argued multiple cases before the Second Circuit Court of Appeals, the Connecticut Supreme Court, and the Connecticut Appellate Court.