Personnel Policies -
If You’re Tracking Employee Behavior, Be Transparent About It - Sun and Planets Spirituality AYINRIN
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Summary.
Maintaining a corporate surveillance program that operates only in the shadows might nab the occasional miscreant, but it does little to promote positive conduct or to deter inappropriate use of corporate assets when employees are working from home. A more balanced approach should include clear communications with employees explaining the reasons for, and existence of, corporate monitoring programs. Being transparent about how you’re monitoring employees should be consistent with a transparent culture and a relationship of trust. Helpfully, this also aligns with the underlying legal framework in the U.S., which is premised on concepts of legitimate interest and notice, and is strengthened further when employees provide their consent to be monitored.
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.
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 GarcĂa 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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