Expert Insight

The Rise of Employee Monitoring Technology in the New Era of Remote Partner, Head of the Employment . Frédérique DAVID

Out of the many societal changes flowing from the COVID-19 pandemic, the effects on employment standards, practices and customs are significant ones and, for some of them, likely to become permanent. For instance, just like in many other European countries, home-based work has become more and more common in France, even though it is to this day no longer mandatory for employers to implement it.

While this kind of practice is not new on the labor market per se, its rising popularity leads to a new range of legal questions, including – amongst others – potential data-sensitive and employment issues, as employers are now trying to find new ways to properly supervise their homeworkers.

In response to the employers’ need, monitoring software companies nowadays offer a wide variety of tools for the purpose of supervising employees throughout their workdays, including recording keystrokes, mouse movements, number of emails sent, web surfing behaviors, GPS locations, and so on.

Key Legal Requirements for Employee Monitoring

Proportionality Of course, these monitoring tools can appear appealing for employers, but it is highly important to first keep in mind that, as a general principle, their use must not restrict the rights and freedoms of employees in a way that would be disproportionate, or rather unjustified, with regards to the intended purpose and to the nature of their assigned tasks .

Right to be Informed Another key requirement is for the monitored employees to be duly informed by their employer of the implementation and use of any monitoring tools. Indeed, under French Law, no information personal to an employee may be collected by a device that has not been brought to his or her attention beforehand Plus, the body in charge of representing all employees (called the “Social and Economic Committee” – an entity that must be implemented in companies with more than 11 employees in France) also needs to be informed and consulted prior to the formal implementation of any monitoring tools and techniques 

Duty of Loyalty More obviously so, employers are not allowed to use stratagems to set up or clandestinely implement monitoring devices unbeknownst to their employees, as it would be contrary to their general duty of loyalty. Besides, any evidence arising from the use of such methods would, in principle and subject to some exceptions, be inadmissible before a court.

GDPR considerations Finally, in addition to employment law considerations, employee monitoring necessarily involves the processing of personal data and, as a result, employers who implement such management practices also need to stay compliant with the requirements prescribed under the General Data Protection Regulation 

These generally include:

  • Following a lawful, fair and transparent processing of employees’ personal data;

  • Respecting “purpose limitation”, which implies that companies should collect data only for purposes that are specified, explicit and legitimate, as well as “data minimization”, which means only collecting the data that is adequate, relevant and limited to the intended purposes;

  • Ensuring accuracy of the data and, when necessary, keeping the data updated;

  • Avoiding undue storage of personal data once the processing purpose is completed;

  • Safeguarding the integrity and confidentiality of data; and

  • Always seeking for the clear and explicit consent of the employees before processing data beyond the legitimate purposes for which data was collected.

Additionally, employers processing their employees’ personal data are to respect their privacy rights under the GDPR – namely, their rights to be informed, of access, to rectification, to erasure, to restrict processing, to data portability, to object, and other rights in relation to automated decision making and profiling.

Processing Biometric Data Through Facial Recognition

Some monitoring software companies even go as far as proposing advanced facial recognition tools using biometric technology to control, for instance, their employees’ presence in front of their computer screens.

However, under the French Laws and Regulations, biometric data can strictly be processed by employers if it used out of necessity to control employees’ access either to their workplace or to devices and applications which they are required to use during their functions.

Otherwise, any other collection or processing of employees’ biometric data is illegal for French employers, including for the purpose of monitoring employee.

Staying on Top

Ultimately, it is safe to say that, while employee monitoring and surveillance is not a new for employers, the major change since the start of the COVID-19 pandemic is that it is now not only used for security and regulatory purposes, but more commonly to manage productivity.

Such evolution in employment practices calls for a close look and analysis of the legal requirements already in place within each jurisdiction and, beyond the extensive effects of the current health crisis, new laws and regulations are often introduced to address situations that were before unforeseeable, which is why it is important for employers to stay cautious and make sure they are up to date on current applicable rules before going forward with implementing different management techniques within their companies, employee monitoring being one of many other relevant examples.