The Issue of Consent in the Employee Monitoring Context

How to (and whether) to tell employees that they’ll be monitored in the workplace has been a hotly debated topic ever since the emergence of the category of software that can track their computer activities to the tiniest of details. While this sort of tool is proving extremely valuable to companies by making processes more efficient and providing an objective and clear picture of employees’ performance, how it all seems from another perspective and whether employees should have a say in how this system is used remains open for discussion.

Recently, this topic reclaimed the limelight when the Federal Trade Commission ordered a Florida phone monitoring company to request its users to get a written consent from their employees before they start monitoring them. Considered as an unusual requirement by some and as a prelude to a wider trend by others, this order serves to testify that the business world is far from reaching a consensus on how much privacy employees are really entitled to in the workplace.

What Does the Law Say? 

The law in different countries is notoriously divided when it comes to employee monitoring. While it’s legal in most cases, the extent of monitoring allowed is rarely agreed upon and the situation is equally confusing when it comes to whether you should inform your employees about it and how.

Let’s take the US, for example. The legal regulations differ by state, so while it’s legal to monitor employees without them knowing about it in some states, you will need to inform them in others. On the other hand, in the EU, the General Data Protection Regulation (GDPR) expressly states that employers should either obtain a written consent from employees or conduct the monitoring based on the ‘legitimate interest’ grounds in order for the employee tracking software use to be considered legal. We’ll come back to the concept of employee consent in the context of GDPR later on, when you’ll see why the latter option is generally preferred among employers.

In general, therefore, if you were to ask whether you’re legally required to tell your employees about using monitoring software to track their computer activity at work, the answer would have to be - it depends.

Should Employees’ Consent Be Mandatory?

Now you are faced with a choice of whether you should ask for employees’ consent even if you’re not obligated to by law. That’s not an easy call and a lot of factors need to be taken into account, but what’s interesting about the FTC decision mentioned at the beginning is that it doesn’t place this burden only on you, but also on monitoring app companies.

If this requirement for employee tracking platforms to ensure that you obtain consent really does become standard practice in the industry, it will remain to be seen how this will affect the way they do business and acquire new customers, as well as whose responsibility it will be to ensure that the consent was indeed given.

For now, the decision is yours to make in most cases. Getting true voluntary informed consent from all of your employees is the best possible outcome, but this scenario might be reserved for a perfect world that we don’t live in.

The Potential Issues

Within the scope of GDPR (although this can be applied to other scenarios too), the main issue with requiring consent under these circumstances is that in order for a consent to be valid, it needs to be freely-given, revocable and there can’t be any imbalance of power between the two parties.

So, one potential problem is the imbalance of power, which clearly exists between employers and employees. In other words, employees might feel pressured to give consent for fear of getting fired. Also, since consent can be revoked, employers should be prepared to accommodate this decision at any point.

Another problem is that giving consent is a personal choice, meaning that you might end up with some employees giving consent and others not. What do you do in this situation? Monitoring just a portion of the workforce might not seem fair to everyone, which will discourage many employees from agreeing to being monitored in the future.

So, is employee consent to monitoring the best way to ensure they’re informed and OK with your practices? Yes. Will it always work the way you want it to? Maybe not.

Are There Alternatives?

If the law requires you to obtain explicit consent (or even if your monitoring software provider does under your purchasing agreement), you have no other legal option. But if not, there might be other ways to handle employees and make sure they know that they’ll be tracked.

It’s an advisable course of action to at least inform your employees that their computer usage will be monitored. Explain what you’ll be tracking as well as why, and maybe even consider doing this before you officially hire them so that they know what they can expect.

Conclusion

There are still a lot of questions left unanswered when it comes to employees’ consent to computer monitoring: Should employees ask for it even if not required? Is just notifying employees enough? And whose responsibility is it to make sure that employees agree to being monitored - the employer’s or the monitoring software company’s?

One piece of advice, though, that still holds true is to simply obey the law and think about what’s best for your workers. This way, you’ll be sure that your monitoring is ethical too, with or without the explicit consent.

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