Working from Home, Flexibility &… Spyware?

If there have been any silver linings to the COVID-19 pandemic, it’s that office workers have embraced flexible working, working from home, and working in pyjama bottoms and blazers!
Employers who had previously been reluctant to allow workers to work from home or flexibly have had to reconsider to ensure business continuity and to keep their workers working. I’m looking at you, traditional firms, who have long lauded the benefits of being seen to be working long hours in the office. While some employers had made inroads into flexible working, anecdotally speaking this was the domain of working parents (mainly mums), who had school drop offs, pick ups and assemblies to manage. Some who managed it openly, and others who apologetically ‘sneaked out’ to pick up, catching up on work later in the day/evening. Thankfully that trend is changing.

In the current employment market, flexibility, and the ability to work remotely on a regular basis has become something that employees are pursuing, and some employers are actively promoting as an employment benefit. Some employers no longer have a desk in the office for every employee, with a hot desk approach being taken.

What then, of the recently reported research that a majority of companies worldwide have installed spyware to keep an eye on employees? While this research’s focus is on international companies, and our friends across the ditch, what’s the likelihood of your employer in New Zealand having installed spyware? Is it lawful? What do you do if you suspect or discover you are being monitored in this way?

Under the Employment Relations Act, employers and employees in New Zealand have mutual obligations of good faith. We are often asked what that means? It is set out in Section 4 of the Act and includes being active and communicative in maintaining a productive employment relationship. It also means that neither can do anything to mislead or deceive the other or do anything that would have that effect. Essentially, that means that employers and employees should must deal with each other honestly and transparently. It’s the fundamental basis of the employment relationship in the New Zealand context.

This means that for the most part, an employer should consult with an employee with respect to any monitoring software it is considering installing on its work devices (phones, laptops, etc.) Trust and confidence are fundamental to the employment relationship, and if an employer is considering monitoring its employees, then it needs to consider the message this is sending in respect of trust. If an employer cannot trust that an employee is working remotely, then there are likely to be wider issues at play. While a work device is employer property, it may be that the employee is also using that device to search and book holidays, arrange appointments, review personal records such as medical and insurance, so it is important that an employer is clear on what is authorised on the work device (and whether it will be monitored). It’s relatively clear to understand that an employer may monitor emails, web browsing etc., but it’s another thing to be monitoring keystrokes (which will likely include passwords), and being set up to monitor through an employee’s work computer’s camera. Is Big Brother really watching?

Here in New Zealand, we have the protections of the Privacy Act 2020. The Privacy Act sets out principles for (among other things) the collection, storage and disclosure of personal information. An employer is required to have a good business reason for collecting personal information, and it must be collected in a way which is not unlawful, unfair or unreasonably intrusive. Where there is a mix of personal and business information/use, the employer will need to be careful about how this is monitored, whether it is reasonable or unreasonably intrusive.

In respect of covert recording, there are times where this will be necessary for an employer to consider, such as CCTV cameras in a store where there is a suspicion of theft – that step will need to be carefully considered before it is taken, with the help of a trusted advisor.

What then, can you do, if you think that you are being monitored and haven’t had that discussion with your employer? In good faith, the first step should be to raise the concerns directly with your employer and seek information about its monitoring policies (if any), and what information they may have collected about you. You may then consider whether it was reasonable that the information was collected in the first place, and what remedies may be available to you. That may include seeking information or raising raise concerns with the Office of the Privacy Commissioner, who can seek information on an employee’s behalf and progress matters through to a resolution, including through mediation.

I’m not convinced that the international research is reflective of the situation that we have here in New Zealand, with employers being cognizant of the requirements of both the Employment Relations Act and the Privacy Act, and generally speaking from my experience, wanting to do the right thing by their employees, including trusting them to be working whether that is in the office, at home, or from a further remote place – even if they are wearing pyjamas until the Zoom call arrives!