Go Ahead, Monitor Your Remote Workers; But You’d Better Hope HR and Risk Management Get It Right

The COVID-19 -forced experiment in letting employees work at home is changing the landscape of employment.

Preventative practices have recently evolved from letting employees work from home temporarily to limit their exposure to the virus to adopting some form of working-from-home on a permanent basis.

Companies like Twitter and Nationwide Mutual Insurance Company plan to continue allowing employees to work remotely after the pandemic.

With that major shift, some employers are seeking technologies to assure that their employees are remaining productive amid such potential distractions, such as children clamoring for help with homework, a plumber arriving to fix a broken kitchen pipe or myriad other challenges.

Technology to Watch … Literally

Advanced technologies are enabling employers to monitor employees’ computer key strokes, take periodic screen shots, track their vehicles’ movements by GPS and even take a measure of how an employee communicates by monitoring their tone of voice, posture and body language.

“We’ve seen traffic to our website nearly triple [during the pandemic],” said Peter Nourse, chief marketing officer for Veriato, a company that provides employee monitoring software.

“We’re getting calls from the COO or VP of HR saying, ‘We just sent 5,000 people to work from home, and we don’t know what they’re doing.’”

Veriato’s products utilize artificial intelligence and can perform such tasks as tracking the websites an employee visits, their key strokes, the time they spend on the computer and take screen shots of what they’re doing on the computer.

Nourse said one of its products taps user behavior analytics to measure employee productivity in relation to others in similar jobs or compared to how they usually work. It takes about 20 days to get a consistent baseline, but then he said it can provide useful information including indicating when a person isn’t performing as well at home as they did in the office.

“How do we know who’s thriving in the home environment and who’s not?” he said. “It could spark a conversation with an employee like ‘Hey, John. You’re normally an “A” performer. What’s going on?’”

The company also can distill the information it tracks into Risk Scores supplied to clients that highlight various pieces of data including a ranked list of employees who’ve done such potentially adverse actions as visiting risky websites, using volatile or aggressive language in their emails or downloading sensitive company information.

Tracking an employee’s behavior over time can flag unusual behavior and provide visual evidence in support of an employer’s decisions regarding that person’s employment, said Nourse, who added that the company’s clients are always advised to consult legal counsel before deploying the company’s products.

That advice is seconded by Todd Wulffson, a partner with the California-based law firm of Carothers, DiSante & Freudenberger LLP.

He recommends anyone considering using employee monitoring software ask themselves what the business reason is for using it and doing a cost-benefit analysis.

The Downsides of Employee Monitoring

One of the biggest potential down sides of using monitoring tools is lawsuits that allege any in a range of charges from invasion of privacy, to intentional or negligent infliction of emotional distress to wrongful discharge.

Monitoring may increase costs in such areas as employee retention if employees leave jobs because they feel like Big Brother is watching them or in workers’ compensation if an employee claims stress related to monitoring.

Some costs, such as the possibility of reduced employee morale, are intangible.

Wulffson recommends that any company instituting software monitoring let employees know about it in advance.

“It’s only fair to tell them how they’re being monitored,” Wulffson said. “You’ve also got to apply monitoring across the board to all similarly situated employees.”

Wulffson said an employer should consult with an attorney before deploying monitoring software. If a company has sites in multiple states, they will want to adhere to the laws in the state that has the most strict laws regarding protecting employee privacy.

“Pick the most employee protective state you’re in and apply it (monitoring) consistently,” he said.

Wulffson recommends that companies reserve the right to control their own property, and lay out the specifics of what they may do, such as reading emails sent by an employee on the company’s behalf or other potential actions, in a work-from-home policy that is provided to employees.

The importance of applying monitoring consistently is reflected in a case that Wulffson handled in which a manager had noticed that an employee was spending an hour a day on a Fantasy Football League.

After that employee was terminated and a lawsuit against the company was filed, it was discovered that the manager who’d fired the employee had spent even more time every day on websites not related to the company’s business.

The case was settled with the terminated employee. &