If You’re Tracking Employee Behavior, Be Transparent About It

Prior to the pandemic, it was already clear that one of the key leadership qualities that sets great bosses apart is empathy — the ability to understand and care about others’ emotions. Empathy has become even more important amid the coronavirus crisis, with managers needing to focus more on their employees’ physical and mental well-being and pay a great deal of attention to their personal circumstances to help mitigate stress and nurture resilience.

But this task is made even more challenging by the reliance on technology to stand in for face-to-face interactions, which requires mastering the awkward art of displaying empathy while using video conferencing tools. Human communication is emotional by nature, but that doesn’t transfer well to digital environments, and there’s a clear difference between feeling and expressing emotions to a computer screen and interacting with someone who is physically present.

To make matters worse, there are delicate ethical and legal implications of managing virtual-only workers — implications that are often unknown to or overlooked by managers. The boundaries between people’s professional and personal spaces were quite blurred before working from home (WFH) became ubiquitous, and they are even murkier now.

In our view, there’s a tricky balancing act between showing empathy for your employees — for example, by frequently checking in on them, evaluating their general emotional well-being, and finding out about their personal circumstances — and respecting their privacy. Some of the issues are ethical rather than legal, and managers shouldn’t assume that common sense will suffice. For example, although there may be no legal issues around scheduling remote meetings during traditional working hours, it is clearly ethical to take into account people’s personal circumstances (childcare, area lockdowns, and the space and silence constraints of a home office, for instance). Sometimes the issues are digital, flowing from the unparalleled reliance on technology, visible and invisible, that supports the WFH environment. Think of Zoom fatigue, the pressure to learn new technological tools, and the productivity drops caused by switching from analog meetings to virtual ones. Now more than ever before, managers should understand not just the elements of good leadership, including inspiring, connecting, and understanding their teams, but also the regulatory and moral implications of exercising it while virtually entering people’s homes.

Consider the following scenario, which will be familiar to a significant share of the global workforce:

A company has migrated all nonessential workers to WFH. They are using their own devices, home technology, and cable modems, possibly sharing with housemates or family members who are doing their own work at home or with students who are attending school remotely. As a consequence, the company is more concerned than ever about security, privacy, and productivity. Are its data and proprietary information safe? Has its exposure to hacking increased? Are there new cybersecurity risks? Are people actually working, or are they slacking off? Are they working more or less than before? In particular, if the culture has historically rewarded presenteeism, will managers learn to evaluate what people produce and deliver, or will they feel compelled to micromanage and obsessively check what employees are doing while WFH?

The company has reached deep into its security tool kit and is deploying some combination of the following commonly available tools: keystroke monitoring, screen capture, email monitoring, and tracking traffic over the VPN connection, including what nonwork programs or software may be operating over it. The main reason may be to keep the company’s data safe, but these activities may also provide useful information to managers about what employees are doing when they are WFH.

How do things look from the employee viewpoint? First, employees may not even be aware of this heightened level of surveillance. While many people expect to be observed and measured and to have their activities monitored while they are in their traditional workplaces, their expectations for what happens outside the office setting may differ. Employees might expect a greater degree of privacy when working from home. Home has historically been viewed as “separate” from the workplace, with many people assuming that their choices, beliefs, lifestyles, politics, and browsing histories are beyond the reach — and not the business  — of their employers. Now line managers and leadership are encouraging or mandating WFH and are looking to strengthen a trust-based relationship in a time of societal and corporate dislocation. Meanwhile a different corporate function, tasked with protection and security, is expanding an array of sophisticated tools that can keep track of what you are doing in your living room and ove your router.

And all this is happening at once. Can these competing interests and activities be reconciled? Perhaps. Attempts to do so will benefit from an understanding of the legal framework, a review of ethical considerations, and ultimately a shared set of communications and expectations designed to strengthen the trust relationship. The key question in our view: How can a well-intentioned manager protect the company’s interests while preserving employee expectations around trust and privacy? Are the two irrevocably in conflict? We think not. We believe it is perfectly possible to design an ethical corporate monitoring program that balances the competing priorities.

Is remote monitoring legal? In the United States, the answer is generally yes. Companies have a legitimate interest in protecting corporate assets. Electronic privacy is regulated at both the federal and the state levels, with the most significant restrictions deriving from the federal Electronic Communications Privacy Act of 1986 and from some state law analogs. In general, the ECPA prohibits employers from intentionally intercepting their employees’ electronic communications, including email and instant messaging, but allows two important exceptions. The first is the “business purpose exception,” which has been interpreted to permit employer monitoring of electronic communications if the company can show a legitimate business purpose for doing so. The second is the “consent exception,” applicable if the company has the employee’s agreement.

The business purpose exception is broad and may encompass interests such as the protection of corporate intellectual property and the safeguarding of systems against malware or computer viruses that may be introduced through social media use or other nonbusiness activities. Employers might also want to ensure that workers are complying with company policies and not using company time or equipment for unapproved activities, such as online gaming and pornography.

At the same time, many states recognize a common-law right to privacy. There is a longstanding legal concept of privacy, sometimes referred to as “intrusion upon seclusion,” that still applies in many locations. Under it, an individual has the right to privacy in his or her personal affairs, free from intrusions by another person (such as an employer), whether that intrusion is physical in nature or takes the form of electronic surveillance of private matters or records. This raises thorny questions about whether monitoring reaches into an employee’s personal activities — a distinction that is especially challenging to draw when personal and business matters are conducted in the same location, on the same devices, and potentially at the same time. A handful of states, including Connecticut, specify additional constraints, requiring that employees be given advance written notice of the type and methods of monitoring to be used.

Gabriel García Márquez wrote that “All human beings have three lives: public, private, and secret.” Before the pandemic and the digital revolution, these lives were surely easier to delineate. In today’s digital WFH environment it may not be possible to completely define the boundaries between public and private, or between corporate and personal. In our experience, conflict often arises because of mismatched expectations: when the WFH employee expects a level of privacy that is out of alignment with the employer’s priorities and expectations. Many of the ethical issues around boundary-setting in general derive from a person’s surprise when boundaries are approached or crossed — “I had no idea that X was happening” or “I didn’t know the company would be monitoring my laptop usage at home.”

One approach is to remove the element of surprise. Corporate culture is increasingly recognized as a distinguishing feature, and it consists of factors relating to employee trust and corporate transparency. Maintaining a corporate surveillance program that operates in the shadows is at odds with these objectives. It might nab the occasional miscreant, but it does little to promote positive conduct or deter inappropriate use of corporate assets. Ultimately, the decision about whether, how much, and what types of monitoring to deploy will be a company-by-company choice, informed by the specifics of your business, the nature of your WFH policies, and the size of your organization and budget. We believe that a balanced approach including clear communications with employees about the existence of and reasons for a corporate monitoring program are consistent with a transparent culture and a relationship of trust. Helpfully, this aligns with companies’ underlying legal frameworks, which in the United States are premised on concepts of legitimate interest and notice and are further strengthened when employees give their consent. 

Although the current situation may be uncertain and unprecedented, some of the old good principles of management still apply — perhaps more than ever. Our goal should be to instill trust and create an ethical climate where fairness and transparency are the dominant currencies, and people experience safety rather than stress or anxiety. The means for achieving this may be new, but at the end of the day it is still about communication, engagement, and well-being, all of which are key to enhancing performance and productivity.

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