What’s legal (and what’s not) when monitoring hybrid workers?

The recent dismissal of an Aussie employee who was sacked for not typing enough while working remotely has raised important considerations for those with similar hybrid set-ups.

Last month, it was revealed Suzie Cheikho was fired from Insurance Australia Group (IAG) earlier this year over productivity concerns.

It came after the major insurance company reportedly tracked Ms Cheikho’s keystroke activity, detecting “very low” keyboard movements during the hours she was meant to be working, ultimately leading to her dismissal from the company she worked at for 18 years.

The matter has offered pivotal insight into how employers monitor employees from afar.

A recent analysis found well over 500 related technology “bossware” products are now available on the market, targeted at monitoring remote workers. Furthermore, the global employee computer monitoring software market is expected to grow by $US488 million to $US1.7 billion by 2029.

But what’s above board and what’s not?

According to Peter Leonard, a professor of practice for the schools of management and governance and information systems and technology management at UNSW Business School, if organisations provide adequate legal notice to employees, they may monitor employees through cameras, audio, keystrokes, and mouse movements.

“Some employers do not think about the legality of workplace surveillance, let alone which surveillance activities are reasonable,” he said.

When it comes to what’s legal (and what’s not), there is no simple answer, said Professor Leonard. The legality of monitoring employees who are working remotely varies from state to state in Australia, he flagged.

“Surveillance is broadly illegal except where the law expressly permits it,” he explained.

“The Workplace Surveillance Act NSW mandates that companies provide employees with a 14-day notice if they intend to use surveillance in the workplace. This includes activities such as monitoring computer keystrokes, recording conversations, and optical surveillance.

“Only notice is required: employers are not required to get prior consent from affected employees.”

Section 16 of the act addresses situations in which employees are working remotely. The act allows surveillance of such employees who are using work devices when they are not at their workplace.

“If you are working from home and you are using equipment or online services provided at the expense of the employer, then, with prior notice, the employer can undertake surveillance,” Professor Leonard explained, noting that this also includes using for-payment software services provided by the employer.

“For example, if an employee is using employer paid-for Microsoft 365 Professional on their personal computer and logged in using their work-related email, the employer may monitor their activities while using the software service.”

When workplace monitoring is appropriate

There are several reasons an employer may want to monitor employees’ work devices that go beyond concerns about productivity levels, according to Professor Leonard.

“In some limited circumstances, an employee’s legitimate expectations of privacy may need to give way to concerns and legal responsibilities of employers to protect workplace safety, information security or commercial confidentiality,” he said.

“For instance, assume that I log in to a work-provided service from an uncustomary overseas location. My employer might use geo-locating features to query whether it was me logging in. To ensure information security, some employers also use keystroke technology, analysing patterns of keystroking that may indicate a person typing is not the individual entitled to use a particular user account.”

That being said, Professor Leonard warned employers to exercise proper caution should they choose to monitor employees in this manner.

“The surveillance of hybrid and remote workers can be a two-edged sword for organisations, particularly when it comes to issues such as perceived trust, responsibility and accountability, and how this impacts workplace culture,” he explained.

A US research study even found that monitored employees were more likely to break the rules through unapproved breaks, disregarding instructions, damaging workplace property, stealing office equipment and purposefully working at a slow pace.

“Workplace surveillance should be done carefully and for the right reasons,” Professor Leonard added.

“Transparency on both the employer and employee sides is one of the most important elements to consider. Hybrid workers should start by thinking about how they use resources and equipment provided by their employer.”

Continuing on the employee side, Professor Leonard said any concerns regarding workplace surveillance practices should be brought up with their employer promptly.

“If employees are concerned about workplace surveillance practices, they should ask their employer for a full description of those practices and associated policies,” he said.

“Employers and employees should each expect a respectful workplace dialogue about when and to what extent monitoring is justified. There should also be full disclosure as to technical and operational safeguards and controls put in place by the employer to ensure that monitoring is a reasonably necessary and proportionate means to a justified end. Transparency and dialogue are key.”