Technology February 2023
Work Productivity
A worrying surveillance trend for remote workers
Written by Celes Keene
Work Productivity Tracking: Employers Face Scrutiny Without
Transparent Policies
When the pandemic ushered in a new era of remote work possibilities and
capabilities, it simultaneously prompted an increase of remote workers
juggling multiple jobs with one being full-time. This trend, known as
“overemployment,” has been helpful for some workers. However, for some
employers, this new trend is unacceptable and can result in immediate
termination. Regardless of the viewpoint, the trend has raised important
concerns about privacy matters in the workforce.
Policies for Work Productivity Tracking by Employers
It has been widely reported that Equifax, the company known as a
credit-reporting service provider, fired 24 of its remote workers when
it determined that these employees were overemployed in that they held
full-time positions with Equifax while also being employed by other
companies. In a statement to the public, Equifax said that it was
against company policy and Equifax’s code of conduct to do so, and as
such, the employees were terminated. While some employees claim they
were unaware of this company policy, others were more concerned about
how Equifax may have found out about their additional employment.
Methods of Employee Productivity Surveillance
According to reports, Equifax used one of its proprietary products, The
Work Number, to surveil its approximately 1,000 employees. The Work
Number is advertised as “fast, secure digital verification services”
that promises to give its users a more holistic view of their pools of
applicants or for individuals to see their employment/income data. In
offering this product, Equifax relies on its own database of information
and states that it can specifically be helpful to those in the mortgage,
auto, consumer finance, credit card, pre-employment verifications, and
government industries. Since The Work Number provides reports on an
individual’s pay periods, it is easy to see when someone may be
overemployed. And employers have a vested interest in the potential for
having overemployed and possibly burned-out workers. Equifax has been
quick to defend its actions, stating that information collected from The
Work Number was not the sole-determining factor in deciding whether an
employee should be fired.
Employee Agreements Should Address Work Productivity Tracking
Policies
Equifax notes that it reviewed various factors, such as the amount of
VPN usage for the employees under investigation. It is a growing trend
by employers to track productivity in ways that could potentially raise
privacy concerns if not handled properly. For example, many companies
have admitted that they have tracked keystrokes, listened via
microphones, or required that employees have their webcams on at all
times as a means of tracking productivity. The demand for such trackers
has skyrocketed with a growing market in the technology sector
consistently finding ways to innovate or provide products/software that
can help to improve employee productivity. In fact, Meta has tried to
appeal to both sides of the equation by stating that its virtual avatars
could appease employers that require employees have their webcams on
during meetings while eliminating employees’ worries about how they may
look at home when they are working remotely. In the end, it behooves
both companies and counsel to consider what should be included in
company employment agreements, equipment policies, and productivity
tracking policies, as these trends continue.
Key Takeaways on Employee Work Productivity Tracking Policies
With companies continuing the trend of allowing employees to work
remotely, employers naturally seek methods of tracking employee
productivity in manners they can’t visually see if the employees were at
the workplace. However, it is important that employers use well-drafted
employment agreements and policies for transparency and to help dispel
privacy concerns by:
-
Clearly defining equipment use and all productivity tracking methods and policies;
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Specifying the type of employee actions (such as overemployment) that would be considered grounds for termination; and
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Confirming there is no use of surveillance methods that involve random captures or recording from webcams or microphones that could pose privacy concerns. TBJ
This article, which was originally published on Klemchuk’s Ideate Blog, has been edited and reprinted with permission.
CELES KEENE
is of counsel to Klemchuk in Dallas. Her practice focuses on
intellectual property and internet law,
e-commerce, and data privacy. Keene has also served as in-house counsel
in the telecommunications industry.
