Workplace Insights | Smile for the Camera: Surveillance in the Workplace

Is big brother watching us at work, and if not, should it be? The issue of surveillance at work and how far employers are able to go in surveilling their employees is a vexed question. Not only does it raise significant legal issues but also may have significant consequences for the culture of the workplace. In additional to the increased use of artificial intelligence and automation, surveillance is also an extremely important development that is changing the nature of the workplace. Surveillance tools have become more prevalent in everyday life, as well as in the workplace, as a result of various factors such as the availability of surveillance technology, the need for increased security and the demand for more accurate data.

If you have an Apple product, such as an iPhone, it is likely that Siri is activated, that your location services are turned on and that you have enabled the microphone and camera functions while using most applications on your mobile phone. This means that your mobile phone is listening to your conversations, your camera is able to monitor your face on a regular basis and data regarding your movements is regularly being tracked. Whether we are fully aware of it or not, we are constantly being monitored by our devices and our data is being shared at rates faster than we can imagine.  Our iPhones are only one example of how surveillance has become extremely commonplace, and how surveillance tools are continuing to be used more regularly.

The focus of this article is the increased use of surveillance in the workplace, and how this impacts the employment relationship. Surveillance, for the purposes of this article, encompasses technological tools and applications that assist to monitor and track the actions of a specific person, or groups of persons at work or while working away from the workplace.

Increase in Surveillance Tools

The availability and use of surveillance tools has increased significantly as a result of increases in technology in the last decade. Some recent examples of ways surveillance tools are being used by employers include, but are not limited to, the following:

• the use of Closed Circuit Television Cameras (“CCTV”) to monitor people in public spaces;
• the collection of personal data by business and the use of this data to create targeted campaigns and advertisements;
• the use of biometric technology for security purposes such as security gates at the airport; and
• government surveillance measures including phone and internet surveillance as well as social media monitoring.

There has also been a surge in surveillance following the COVID 19 Pandemic. As was seen in various countries, governments introduced mandates which required individuals to download specific mobile phone applications which enable the government to track the whereabouts of individuals. In Moscow, Russia, citizens were required to use a QR code for travel which enabled the Russian government to collect information and monitor its citizens. The government also installed over 100,000 cameras and other facial recognition technology time during the COVID 19 pandemic to ensure citizens were complying with the COVID 19 mandates. Closer to home, each State and Territory government mandated the use of a government mobile phone application to be used to scan into locations and events. If the application was not used, entry could be refused into these institutions and events. Although mandates have been eased or eliminated around the world, many of the forms of surveillance measures used during the COVID 19 pandemic, such as the introduction of additional CCTV cameras, are still being used today and have set the norm for what is acceptable.

Surveillance in the Workplace

In addition to surveillance present in everyday life, there has also been a considerable increase in surveillance in the workplace. Employers are using surveillance in the workplace to increase the accuracy of employee data, to ensure employees are working productively when working from home and to protect confidential and sensitive company data. In particular, surveillance tools allow businesses to:

• track emails;
• track phone calls;
• measure the amount of time an employee spends on a specific screen or task;
• track and view internet activity;
• track an employee’s keystrokes on company devices;
• track locations and employee whereabouts using geofencing and other mobile tracking devices;
• observe and record images of employees using CCTV cameras; and
• collect biometric data.

The type of surveillance tools a business decides to use in their workplace will depend on factors such as the specific needs of the company, the number of employees in the business and the industry. For example, employers of large businesses such as manufacturing plants have commenced using surveillance technology such as biometrics and geofence applications to ensure the accuracy of attendance records. Geofence applications are software applications used to create a virtual perimeter around a chosen location in order to trigger a time stamp of each staff member using the application. This type of surveillance tool is used to ensure accuracy of attendance records of employees, however it also provides a very clear picture of where employees are located, whether they are at work or not and when they leave. Biometric tools, such as the use of fingerprint technology, iris scanning, signatures or voice recognition in order to increase the security of the business (the next article in the Future of Work series will explore biometrics in more depth) are also new technologies being used by savvy employers to have more control over their employees.

Concerns That Arise as a Result of Increased Surveillance in the Workplace

Introducing surveillance technology inevitably assists companies collect data about their employees, ensure accuracy and security and assists to streamline processes. However, businesses must also be aware that there are also various risks to using surveillance in the workplace. Some of the most common concerns that arise as a result of increased surveillance in the workplace include, but are not limited to:

• privacy concerns;
• lack of transparency;
• incomplete information produced by surveillance tools; and
• lack of trust between employer and employee.

Privacy Concerns and Relevant Legislation   

A business’ use of surveillance tools often raises privacy concerns in the workplace because surveillance tools are used to monitor and track employees’ screens at work which gives businesses access to information such as an employee’s emails, chat history on an employee’s company chat function, as well as an employee’s video and audio functions on their company mobile phones, laptops, iPads, and/or any other company devices.  This creates privacy concerns for employees because employees may feel that their rights to privacy are not being respected, especially in situations where the surveillance tools inadvertently listen to, or record, employees’ personal conversations, phone calls or personal searches an employee makes. It is very important that employees are made aware of the surveillance that is occurring so they can make informed decisions about using company property for private purposes. It is important to note that employees using employer property in the course of their employment do not have a right to the protection of their personal information, and this can be accessed by the employer. There are however a number of safeguards that the law has introduced to ensure this right to surveillance by employers is not abused.

The use of surveillance in the workplace is regulated by legislation and varies depending on the Territory or State in which the employer operates. In New South Wales, the Workplace Surveillance Act 2005 (NSW) (“Surveillance Act”) regulates surveillance by employers. In order to use technologies including cameras, listening devices, global positioning systems, telephone recorders and the like, employers must comply with strict disclosure and notice obligations prescribed by the Surveillance Act. Further, it is worth noting that covert surveillance of employees at work is generally prohibited unless a covert surveillance authority (such as a Magistrate) has issued an order permitting this kind of surveillance to occur.

Even in circumstances where an employer wishes to use surveillance in the workplace, bear in mind that certain facilities within the workplace such as bathrooms and washrooms are deemed to be out-of-bounds by the legislation.

Provided that the mode of surveillance is not covert and is not used in restricted areas, it is lawful for an employer to install surveillance systems in the workplace where the following steps have been taken:

1. The surveillance must not commence without prior notice in writing to the employee;
2. Written notice must be given at least 14 days before the surveillance commences (unless an employee agrees to a lesser period of notice);
3. The notice must indicate details of:
   • The kind of surveillance to be carried out, for example, camera recording;
   • How the surveillance will be carried out;
   • When the surveillance will start;
   • Whether the surveillance will be intermittent or continuous; and
   • Whether the surveillance will be for a specified period or ongoing.

Similar legislative provisions can also be found in Victoria, Western Australia, South Australia, Tasmania and the Northern Territory. For more information about the Surveillance Act, please see our article titled ‘Workplace Privacy: Can I Record Employees at Work’.

Employers in NSW must also ensure that they abide by the Surveillance Devices Act 2007 (NSW) (“SD Act”). The SD Act governs the use of surveillance devices. For the purposes of the workplace, employers need to ensure they comply with the prohibitions regarding covert recordings and of private conversations.

As such, it is important for employers to familiarise themselves with the applicable legislation regarding listening devices and surveillance to ensure they are compliant with the relevant State or Territory laws, if they use surveillance devices, or plan to do so in the future.

Lack of Transparency

Transparency is vital to the effective and appropriate use of any type of surveillance at work. If employees feel that they are not trusted, this will do more to damage the business than any lack of surveillance. As such, if you or your business is using surveillance tools, we recommend that the business is transparent about the aforementioned  issues, and that it implements adequate policies that address privacy concerns that employees may have.

Incomplete Information

Employers must keep in mind that while surveillance tools can assist businesses determine the productivity of an employee, can measure specific data in the workplace such as the number of keystrokes during a certain period of time or the amount of time it takes to answer emails, relying on surveillance tools without taking into account other factors will lead to incomplete information about an employee. Surveillance tools are unable to measure an employee’s soft skills such as their ability to lead a team or their ability to mentor or work collaboratively with other colleagues. Surveillance tools also fail to capture an employee’s productivity in situations where they are not in front of a company device, such as meetings outside the office or external conferences. As such, employers that are using surveillance tools to determine an employee’s worth to the company, should be extremely cautious in relying on data produced by surveillance tools.

Lack of Trust

There is also a risk that the use of surveillance tools may erode the relationship between an employee and their employer. Since work relationships are usually based on a mutual trust between an employee and their employer, when surveillance tools are used to track or monitor an employee’s performance, attendance, conduct etc, it can make an employee feel that their employer does not trust them and can lead to the deterioration of the relationship and erode the culture of the workplace. As such, we advise employers to take these risks into account when deciding whether to implement surveillance tools into their workplace. It is important not only to ensure that only surveillance that is necessary to protect the business is implemented, but that genuine consultation occurs with the workforce if any new surveillance is to be introduced.

Key Takeaways        

Surveillance tools have become more prevalent in the workplace and are influencing the future of work. Many employers are using surveillance tools to ensure accurate attendance records, to monitor employee productivity and to create more secure login systems that help protect a business’ confidential data. While surveillance tools can assist businesses, there are also various risks that are associated with surveillance tools such as privacy concerns, lack of transparency, incomplete information and lack of trust and the deterioration of a positive company culture.

As such, we encourage employers to keep these risks in mind when deciding whether to use implement surveillance tools into their workplace. In the event an employer decides to implement surveillance tools into the workplace, they should ensure that they are as being as transparent as possible and ensure that policies and contractual terms are created which accurately explain the use of surveillance tools within the business.   The business must also ensure it has complied with the relevant legal obligations in each State or Territory in which it operates, as a failure to do so, will be a breach of the law and may mean the evidence collected by the surveillance is inadmissible in a court. It may also open the business up to significant penalties.

If you require any assistance or information in relation to this alert, please do not hesitate to contact us.

This alert is not intended to constitute, and should not be treated as, legal advice.