NLRB cracks down on ‘abusive’ employee monitoring software, but employers should never have installed it in the first place

ByLance T. Lee

Nov 10, 2022


The use of employee monitoring software, known as bossware or “tattleware”, to monitor workers increased during lockdown years. Jennifer Abruzzo, general counsel for the National Labor Relations Board (NLRB), issued a memo last week aimed at protecting employees from “abusive practices of electronic monitoring and automated management.”

It is a welcome decision. Monitoring employees in their homes is controversial and counter-intuitive. Employers should never have considered it.

Bossware is a generic term for employee monitoring software. It tracks computer usage via keystrokes, mouse movements, and webcams. It also monitors employees’ online activities such as email checking and internet usage. A recent survey reported that most employers track their staff to understand employee activity and productivity. Satya Nadella, CEO of Microsoft, called it “productivity paranoia”. Worryingly, some employees don’t even know they are being watched.

Zety’s Latest 2022 Research reveals alarming statistics. It reports that 85% of U.S. employers use some form of employee monitoring software to track employee productivity, safety, and behavior. The vast majority (83%) of employees surveyed see this as a privacy breach.

The monitoring of workers is of course not new. In 1914, the Ford Motor Company created a sociological department where investigators made unannounced visits to employees’ homes to check on their cleanliness. According to a European Commission studyglobal demand for employee monitoring software has doubled during the pandemic. This site lists hundreds of employee monitoring systems with disturbing names, such as PersonalCop, Labor Examiner and sneak. Some popular collaboration platforms, including Google workspace, Soft and Microsoft Teamshave the ability to monitor employee data.

10 Reasons Employee Monitoring Software Is Counterintuitive

It is encouraging that official bodies are exploring legal frameworks to curb the rise of employee monitoring software. There has been a disturbance creep function of this type of digital surveillance in recent years. There are compelling reasons why employers should never have gone down the daunting route of digital surveillance.

  1. It erodes trust. In the Search Zety, 66% of employees surveyed felt untrustworthy due to workplace surveillance. Employee surveillance is a form of digital presenteeism, and round-the-clock supervision and micromanagement breeds disempowerment and disengagement.
  2. Productivity and performance cannot be reduced to a single metric. Bossware calculates productivity and performance solely through IT activity. The absence of keystrokes or mouse movement is reported as non-productive time. But the whole premise is skewed in favor of screen work. Maybe the employee is thinking or working something on paper. It does not follow that someone is inactive if he is not working on his computer.
  3. It does not address the root cause of poor performance and disengagement at work. Even if one accepts the (highly dubious) premise that reduced IT activity corresponds to disengagement and poor performance, that does not explain why the employee is disengaged. Bossware calculates keystrokes and mouse movements. It does not assess underlying issues related to productivity or job performance.
  4. It demoralizes employees and can lead to staff resignations. The research by Zety reports that 61% of respondents believed workplace surveillance made them less effective. Seventy-seven percent said they would leave if their company used excessive surveillance.
  5. This raises data privacy concerns. Companies register and monitor employees at home, raising serious concerns about the collection and use of personal information, especially data collected without employee consent. There has been an alarming increase in cybercriminals selling personal data.
  6. Legal and union lawsuits against workplace surveillance are piling up. The intervention of the NLRB is very important. Currently, there is no agreed international legal framework prohibiting workplace surveillance. There is, however, a growing global backlash from employees, legal bodies and trade unions towards employee surveillance, which may lead to international legislation. Unison, a British public service union, has published employee monitoring policies and guidelines. The Information Commissioner’s Office (ICO), a public body that reports directly to the UK Parliament, has released information on employee surveillance orientation project last month. Some US states, such as Massachusetts, California, Connecticut, and Delaware, are tightening workplace surveillance laws. In Europe, employers are prosecuted under Article 8 of the European Convention on Human Rights (ECHR).
  7. Continuous monitoring of the workplace is not conducive to employee well-being. A study by ExpressVPN the call center monitoring review found that 56% of employees experience anxiety and stress when their employers monitor them; 41% are paranoid about being watched; 32% took fewer breaks for fear of being watched. Use of employee monitoring software causes mental health issues. As Sarah O’Connor remarks in a FT Notice“It would be a disheartening irony if the technology introduced to protect our health in a pandemic made us sicker in the end.”
  8. It is based on a highly contested theory of human productivity. The constant monitoring and presence of others to enhance personal performance is an early 20th century idea known as “social facilitation“. The issues raised in this section about how monitoring leads to an erosion of trust and demoralizes employees are valid counter-arguments for social facilitation. A study 2017 monitoring of homeworkers’ employees in the UK found that electronic monitoring negatively affected the quality of their work rather than improving performance.
  9. She can lead to ‘theater of productivity‘. A HBR survey assessed that “monitoring employees makes them subconsciously feel less responsible for their conduct, which makes them more likely to act immorally”. It would seem that the use of employee monitoring software breeds a generation of mouse movers.
  10. It does not take into account generational differences. Bossware is biased towards routine work. Digital natives tend not to stick to the usual business routines. They can put in long hours, but are considered lazy by bossware if they work outside of the office structure.

From paranoia to politics

The sudden shift to working from home during Covid-19 has led to productivity paranoia and an increase in employee monitoring software. White-collar workers now get a taste of what blue-collar workers endured for decades. As we move towards a hybrid workplace and automated management, there is an urgent need to clarify and update data privacy and digital surveillance practices. Legal clarity, such as the memo released last week by the NLRB’s general counsel, is a welcome intervention. This may prompt employers to reconsider their controversial and counter-intuitive employee monitoring practices.

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