If you’re tracking employee behaviour, be transparent about it

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Friday January 22, 2021

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There’s a tricky balancing act between showing empathy for your employees and respecting their privacy. Now more than ever, managers should understand not just the elements of good leadership, but also the regulatory and moral implications of exercising it while virtually entering people’s homes. Tomas Chamorro-Premuzic and Richard Buchband for the Harvard Business Review.

Prior to the COVID-19 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 other people’s 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. 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 videoconferencing tools. There’s a clear difference between expressing emotions to a computer screen and interacting with someone who is physically present.

To make matters worse, there are the delicate ethical and legal implications of managing virtual 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 became ubiquitous, and they are even murkier now.

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There’s a tricky balancing act between showing empathy for your employees 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, it is clearly ethical to take into account people’s personal circumstances (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 analogue meetings to virtual ones. Now more than ever, managers should understand not just the elements of good leadership, but also the regulatory and moral implications of exercising it while virtually entering people’s homes.

Consider the following scenario

A company has migrated all nonessential workers to WFH. They are using their own devices, home technology and cable modems, possibly sharing with family members who are doing their own work at home or with students 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 people actually working, or are they slacking off?

The company is deploying some combination of keystroke monitoring, screen capture, email monitoring and tracking traffic over the VPN connection, including what non-work programs or software may be operating over it. The main reason may be to keep the company’s data safe, but these tools may also provide useful information to managers about what employees are doing when they are WFH.

Employees may not even be aware of this heightened level of surveillance. While many people expect to have their activities monitored while they are in their traditional workplaces, 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 beliefs, lifestyles, politics and browsing histories are beyond the reach — and not the business — of their employers. Now managers and leadership are encouraging or mandating WFH and looking to strengthen a trust-based relationship in a time of societal and corporate dislocation. Meanwhile a different corporate function, the one responsible for protection and security, is expanding an array of sophisticated tools that can keep track of what you are doing in your living room and on your router.

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 US, 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 analogues. 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.

At the same time, many states recognise a common-law right to privacy. There is a long-standing 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. Some states, including Connecticut, require that employees be given advance written notice of the type and methods of monitoring to be used.

In today’s digital WFH environment it may not be possible to completely define the boundaries between the corporate and the personal. 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 ethical issues derive from a person’s surprise when boundaries are crossed — “I didn’t know the company would be monitoring my laptop usage at home.”

One approach is to remove the element of surprise. Maintaining a corporate surveillance program that operates in the shadows might nab the occasional miscreant, but it does little to deter inappropriate use of corporate assets. Ultimately, the decision about whether, how much and what types of monitoring to deploy will be your company’s choice, informed by the specifics of your business, the nature of your WFH policies and the size of your organisation 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 predicated on concepts of legitimate interest and notice, and are further strengthened when employees give their consent.

(c) 2020 Harvard Business School Publishing Corp. Distributed by The New York Times Licensing Group

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