Your Company May Be Watching You

"Since the start of the remote-working surge, employers have had a nagging concern: Just how much are employees really accomplishing at home?

To answer that, more companies are turning to worker-monitoring technology, which can reveal when employees step away from their computers, what websites they visit and how long they use various software. Depending on the system, managers can see what employees are typing, read their email and even watch them from their laptop's camera.

These capabilities, though generally legal, have led to pushback from workers and raised concern from privacy experts. Have employers gone too far?

We gathered three experts to discuss this issue: John Davisson, director of litigation and senior counsel at the Electronic Privacy Information Center, a nonprofit research and advocacy organization; Brian Kropp, vice president of human-resources research at advisory firm Gartner Inc.; and John Verdi, senior vice president of policy at the Future of Privacy Forum, a data-privacy think tank funded by corporations and foundations. Edited excerpts of the conversation, which took place online, follow.

WSJ: How widespread is employer use of electronic-monitoring technology?

MR. KROPP: Before the pandemic, roughly 30% of large employers used some form of employee monitoring. Now, 60% of large employers are using these technologies to track at least some of their employees.

MR. DAVISSON: Of course, many of those people would have been subject to some form of activity monitoring in a bricks-and-mortar office, but the degree to which employee monitoring has entered the home is quite astonishing.

WSJ: What types of monitoring have become more prevalent?

MR. KROPP: Since the pandemic, more activity-tracking tools have been put in place. When do people log on, when do they log off? There has also been growth in organizational network analysis to better understand who is working with and communicating with whom.

The third place that we are seeing growth is text-analytics techniques applied to employee communications, including email and Slack. Employers are trying to get a sense of whether employees are talking about changes in policies, whether external factors are becoming more common in their conversations, etc.

The bleeding edge is using video analytics on facial expressions and reactions in meetings to determine who is making the biggest contributions and who isn't.

MR. DAVISSON: Activity-monitoring tools seem to be the most prevalent in remote work. Depending on the system, employers may be able to view screenshots of an employee's computer and receive detailed analytics about an employee's activities. Some systems also include keylogging or the ability to turn on a computer's microphone and camera to observe and track an employee's activity.

MR. VERDI: Brian mentioned tracking computer activity -- login time, application use, etc. Sometimes that is particularly invasive and intrusive, such as supervisors engaging in the virtual equivalent of "peering over a worker's shoulder," gazing at their screen at all times. In other circumstances, organizations use less-invasive monitoring.

WSJ: What are the most justifiable types of monitoring based on legitimate employer needs?

MR. DAVISSON: Employers have a legitimate interest in ensuring employees are fulfilling their job responsibilities. The problem comes when employers engage in maximalist surveillance, collecting data that isn't strictly necessary for legitimate business purposes, using products that are far more invasive than the employer truly needs, and failing to account for the harmful effects on the privacy and morale of employees.

Surveillance systems that rely on automated decision-making to flag particular behaviors by employees -- for example, cursor tracking or facial-recognition tools -- also run the risk of reinforcing racist, sexist and ableist patterns in the workplace.

I also think activity-monitoring systems have a tendency to focus employers on the appearance of productivity rather than a task-driven, results-driven view of work.

MR. VERDI: Most folks understand why organizations need to monitor for reasons like legal compliance, antifraud and workplace safety. Financial firms have long had obligations to monitor workers' activities to promote compliance with oversight regulations. But it is incumbent on organizations to vet their monitoring technology for efficacy and fairness.

MR. KROPP: A different question isn't what is legitimate, but how do you make sure employees feel comfortable with whatever you are collecting? The first thing that you have to do as an employer is be transparent with employees about what you are collecting and what is the business purpose of it. Then you need to share with employees the key information you are getting and the decisions you are making based on that.

Employees are increasingly accepting of being monitored if they know what is happening and why.

WSJ: What types of monitoring are the least defensible?

MR. VERDI: A few categories jump out as the least defensible: technologies that fail to deliver what is promised, technologies that discriminate against marginalized communities, and technologies that are surreptitious without any justification. For example, some tools claim to assess "trustworthiness" based on facial or voice analysis, but experts are deeply skeptical that they deliver on that claim.

MR. KROPP: Where it becomes problematic is when you are making decisions with the data that you collect that you can't actually make with the data.

One company we were working with had to decrease its head count. They turned to their tracking software and basically wanted to lay off the people who were working the "fewest hours." But the software only shows when people are logged on or off. What about employees who step away from their computer and are working but are writing things out? What about employees who walk while they are having a phone conversation?

A second one is where biases are introduced from monitoring. For example, different people might use different words (non-native speakers) or have different facial expressions that are driven by cultural norms, histories or a variety of other realities. There is a real concern that the data generated from monitoring tools is biased based on these demographic factors.

MR. DAVISSON: I think there is very rarely a legitimate business need to subject employees to facial recognition or other biometric surveillance. Studies have consistently shown that these tools are less effective and less accurate when applied, for example, to Black faces or used to evaluate disabled persons.

I would also point to tools that allow an employer to covertly activate the microphone or camera on an employee's computer.

WSJ: On the flip side, do monitoring technologies provide any benefits for employees?

MR. VERDI: Organizations can use monitoring to act on complaints of workplace harassment. And some types of workplace monitoring can help even the playing field for workers. When used to monitor work with clear goals and metrics, monitoring can empower high-achieving workers who might be overlooked or subject to human bias.

MR. KROPP: One of the big challenges in a hybrid/remote world is that it is harder for managers to observe the contributions employees are making.

On average, men are more likely than women to self-promote. In an in-office environment this leads to managers thinking that men, on average, are making a bigger contribution than women. This problem is only worsened in a virtual world.

Not only can monitoring tools see if employees are engaging in their tasks, the next generation will provide insights into which employees are making the biggest contributions but might not be the loudest about the contributions they are making. It has the potential to mitigate some of the gender bias in the workplace.

MR. DAVISSON: I think the benefits of workplace surveillance are pretty limited for employees.

WSJ: What are the legal boundaries for monitoring? Do employers need to tell workers they are watching them?

MR. DAVISSON: Federal law generally prohibits employers from intercepting personal phone calls. Some states require employers to notify employees when and how they will be monitored. And some uses of surveillance technology in the workplace may even violate laws against unfair and deceptive trade practices or rise to the level of employment discrimination.

But these laws don't provide effective protection against the dominant forms of employee monitoring. It's a problem that federal and state lawmakers need to take up.

MR. VERDI: The situation is much different globally. For example, EU law generally prohibits employers from using employee consent as a basis for monitoring, under the reasoning that such consent cannot be freely given when an individual's livelihood hangs in the balance. Europe's Data Protection Authorities have levied fines in excess of 30 million euros (about $30.1 million) in response to excessive workplace monitoring.

European law provides tools for workers to better understand how their employer collects and uses data about them.

Some of those rights are on track to become available to California workers, as a provision exempting employee data from California's main privacy law is set to expire.

MR. KROPP: A really interesting question for the U.S. is how quickly will these laws change. If California changes the California laws, do those laws become the de facto standard?

WSJ: Can monitoring create wariness among workers about their employer or lead to other downsides for companies?

MR. DAVISSON: Yes! Continuous worker surveillance can breed distrust and stifle productivity -- this is a well-documented consequence of broad-scale surveillance. That's not to say all forms of employee monitoring are equally pernicious, and many employees may be able to thrive despite being monitored. But I do think the risk of blowback is there.

MR. VERDI: Controversies can arise when organizations engage in adversarial monitoring and fail to inform workers, and especially if the monitoring produces unfair, inaccurate results.

MR. KROPP: Another important thing to keep in mind is the reputational damage that can emerge if this is done poorly.

If you are a large company and you misuse these tools, does that create the situation where the CEO needs to testify on Capitol Hill? If consumers find out that you are monitoring your employees and using it for "evil," does that create a customer backlash?” [1]

1. Workplace Technology (A Special Report) --- Your Company May Be Watching You: How far should companies go in using technology to monitor their employees?
Ziegler, Bart. 
Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]. 22 Aug 2022: R.1.