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;

  • Specifying the type of employee actions (such as overemployment) that would be considered grounds for termination; and

  • 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.

Headshot of Craig BallCELES 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.

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