I was perusing social media this morning (while it was still dark out), and I happened on an article discussing “Bossware.”  The term is being applied to workplace surveillance software, which is software that tracks employee keystrokes, monitors internet usage, and even takes random screenshots throughout the day.  This software isn’t new, but it’s gained recent attention because Palantir has received a recent $300 million no bid contract to monitor certain federal employees.  The contract, and the use of this software, has consequently come under scrutiny.  And obviously, this is another form of technology that keeps advancing, especially with AI. 

As I said, the use of monitoring software is not new, and its use spiked during the pandemic.  Many employers, unfamiliar with and nervous about their employees working off-site, implemented software to “watch” their employees on camera all day or otherwise monitor their activity.  But even before the pandemic, employers have implemented GPS tracking systems for employees who work in the field or installed cameras in areas to monitor cash handling, drug dispensing, or alcohol vending.  

Going back to the 90s, I have assisted employers with drafting appropriate policies and protocols to permit them to engage in a certain level of employee monitoring.   If you have our employee handbook, we include a default policy reminding employees that they have no expectation of privacy in company owned systems and devices, and we reserve the right to monitor employees and even conduct searches if warranted.  The policies must comply with local and federal law, for example, in California, we cannot record audio without express consent.  But implemented correctly, employers absolutely have the legal right to monitor their employees through technology.

So yes, as employers, you are legally entitled to engage in software surveillance.  But should you?

Employers have many “rights” which they may not choose to exercise, for all the reasons, including cost and employee morale.   For example, we usually include policies in your employee handbooks giving you the right to require physical exams, background checks, and drug tests for new hires.  But most employers do not implement all these pre-conditions.   Their usage depends on the industry, the employer, and even specific employee job functions or positions.  Background checks make sense for security or high-level employees, and physical exams may make sense for operating certain equipment or for physically intense roles.   And some employers, many hiring in creative fields, have confessed that they could never drug test their employees.   You make the choices that fit your workforce.

Should you install specific software to monitor your employees?  I have walked many employers through this analysis.  We are now six years post-pandemic, and I think many employers have adjusted to the concept of a remote workforce, or at least, some remote employees.  I have written many articles and given many talks on the plusses and minuses of having remote or even hybrid employees, and with the pandemic in the rear-view mirror, employers now have a choice.  Even those of you with “essential” workforces, such as hospitality, retail, or manufacturing, may have accounting or marketing personnel that work off site.   Technology permits us to now hire workers who may have been unavailable geographically, and maybe even save on office costs.

But some companies are using workplace surveillance software beyond their remote workforce.  What drives decisions to implement workplace surveillance software?  Trust.  We monitor employee behavior when we don’t trust them.  And let’s face it, employees know that.  It’s why this issue pushes their buttons so hard. 

And there are different kinds of “trust” at play here.  Even with the best of management, we may not be able to establish that a particular employee is pilfering drugs, sipping alcohol behind the bar, or embezzling by creating false payable accounts.  That is the type of sinister conduct that justifies cameras, audits, and other protocols.   I had a client years ago that suspected a sales employee was sending business to a competitor while on their clock.  They set up software to clone his emails and caught him, blatantly using their company systems to divert business.   Nefarious behavior may warrant conducting employee surveillance in these specific situations.

But much of this software surveillance tracks the workforce to determine if employees are actually working during work hours.  As one of my clients said to me during the pandemic, how do we know that these employees are not simply watching Netflix during the day?

I will tell you the same thing I told her – we know when our employees are not working because they are not productive. 

The best way to monitor your employees’ activities is to hold them accountable in their job performance.  Are they turning out quality, error free, timely work?  Are they responsive to you and your clients? Are they working well with their co-workers?  Are they doing their job?

Most likely, your answer is that while you generally trust most of your employees to work well, you have a few problem children.  We all do.  Which brings me to one of my favorite mantras – don’t design bad policies around bad employees.  Single them out.  Focus on your challenging employees and allow the remainder to do their work. 

I know; many employers find it easier to just implement a workforce wide policy than focus on the one or two employees with issues.  That’s laziness.  Do your job as an employer and hold your weak link employees accountable with solid management and performance critiques.  It’s not only legal to target these poor performers and treat them differently – it’s fair.  What isn’t right is to “punish” all your employees for the failure of a few. 

All that said, there may be those instances where cloning software, checking cameras, or requiring a drug test of a current employee is warranted.  That is why we draft and include these policies in your handbooks.   Hopefully, you rarely if ever need to implement that level of surveillance.  But it’s there if you do. 

Just remember,  implementing any type of surveillance, just like pre-employment testing, will not magically solve most workplace issues.  Good management is still the key.   And reach out if need be, as always.