The NLRB Is Cracking Down on ‘Abusive’ Employee Surveillance Software, But Employers Should Never Have Installed It In the First Place

The use of employee surveillance software, known as bossware or ‘tattleware’, for monitoring workers surged during the lockdown years. Jennifer Abruzzo, General Counsel to the National Labor Relations Board (NLRB), issued a memo last week seeking to protect employees against “abusive electronic monitoring and automated management practices.”

This is a welcome move. Monitoring employees in their homes is controversial and counterintuitive. Employers should never have contemplated it.

Bossware is a generic term for employee surveillance software. It tracks computer usage via keystrokes, mouse movement and webcams. It also monitors employee online activity such as checking emails and internet usage. A recent digital.com survey reported that most employers track their staff to understand employee activity and productivity. Satya Nadella, CEO of Microsoft, termed this “productivity paranoia”. Worryingly, some employees don’t even know they are being watched.

The latest 2022 research by Zety uncovers some alarming statistics. It reports that 85 percent of US employers use some form of employee surveillance software to track productivity, security and employee behavior. The vast majority (83 percent) of surveyed employees consider this an invasion of privacy.

Worker surveillance is not new, of course. In 1914 the Ford Motor Company created a sociological department where investigators made unannounced visits to employees’ homes to check on their cleanliness. According to a European Commission Study, global demand for employee surveillance software doubled during the pandemic. This site lists hundreds of employee monitoring systems with ominous-sounding names, such as StaffCop, Work Examiner and Sneek. Some popular collaboration platforms, including Google Workspace, Slack and Microsoft Teams, have data employee surveillance capability.

10 ways employee surveillance software is counterintuitive

It is encouraging that official bodies are exploring legal frameworks to curb the rise of employee surveillance software. There has been a disturbing function creep of this kind of digital surveillance in the last few years. There are compelling reasons why employers should never have gone down the forbidding path of digital surveillance.

1. It erodes trust. In the Zety research, 66 percent of interviewed employees felt untrusted due to workplace surveillance. Employee monitoring is a form of digital presenteeism, and round-the-clock supervision and micromanagement engenders disempowerment and disengagement. 
2. Productivity and performance cannot be reduced to a single metric. Bossware calculates productivity and performance solely through computer activity. Lack of keystrokes or mouse movement is flagged as non-productive time. But the entire premise is biased towards screen-based work. Maybe the employee is reflecting or working something out on paper. It does not follow that someone is idle if they are not working on their computer.
3. It doesn’t get to the root cause of poor performance and disengagement at work. Even if we accept the (highly dubious) premise that reduced computer activity corresponds with disengagement and poor performance, it doesn’t explain why the employee is disengaged. Bossware calculates keystrokes and mouse movement. It does not assess underlying issues related to productivity or performance at work.
4. It demoralizes employees and can lead to staff resignations. The research by Zety reports that 61 percent of interviewees thought workplace surveillance made them less efficient. Seventyseven percent said they would leave if their company used excessive monitoring.
5. It raises concerns about data privacy. Companies are recording and monitoring employees in their own homes, which raises grave concerns about gathering and using personal information, especially data collected without employee consent. There has been an alarming increase in cybercriminals selling personal data.
6. The legal and union case against workplace surveillance is mounting. The NLRB intervention is highly significant. Currently, there is no agreed international legal framework outlawing workplace surveillance. There is, however, a growing global reaction from employees, legal bodies and unions towards employee surveillance which may lead to international legislation. Unison, a UK public service union, published policies and guidelines on employee surveillance. The Information Commissioner’s Office (ICO), a public body which reports directly to the UK Parliament, published employee monitoring draft guidance last month. Some US states, such as Massachusetts, California, Connecticut and Delaware, are tightening workplace surveillance legislation. In Europe, employers are being prosecuted under Article 8 of the European Convention on Human Rights (ECHR).
7. Persistent workplace surveillance is not conducive to employee wellbeing. A study by ExpressVPN looking at call center monitoring revealed that 56 percent of employees feel anxiety and stress when their employers monitored them; 41 percent are paranoid that they were being watched; 32 percent took fewer breaks because of fears they were being monitored. The use of employee surveillance software is causing mental health problems. As Sarah O’Connor remarks in an FT Opinion, “It would be a dispiriting irony if technology brought in to protect our health in a pandemic made us sicker in the end.”
8. It is based on a highly contested theory of human productivity. Constant monitoring and the presence of others to improve personal performance is an early twentieth-century idea known as “social facilitation“. Issues raised in this section about how surveillance leads to an erosion of trust and demoralizes employees are valid counterarguments for social facilitation. A 2017 study of employee surveillance of UK homecare workers found that electronic monitoring negatively affected their work quality rather than improving performance.
9. It can lead to ‘productivity theatre’. An HBR survey assessed that “monitoring employees causes them to subconsciously feel that they are less responsible for their conduct, thus making them more likely to act immorally.” It would seem that use of employee surveillance software is breeding a generation of mouse movers.
10. It doesn’t take into account generational differences. Bossware is biased in favor of routinized work. Digital natives tend not to stick to regular business routines. They may be putting in long hours but are rated as slackers by bossware if they work outside of the office structure.

From paranoia to policy

The sudden shift to homeworking during Covid-19 led to productivity paranoia and a surge of employee surveillance software. White-collar workers are now getting a taste of what blue-collar workers have endured for decades. As we shift toward a hybrid workplace and automated management, there is an urgent need to clarify and update data privacy and digital surveillance practices. Legal clarity, such as the memo issued last week by the general counsel to the NLRB, is a welcome intervention. It may prompt employers to review their controversial and counterintuitive employee surveillance practices.