The pandemic has given an enormous boost to working from home, in particular (to state the obvious) when it was mandatory. Where roles permitted it, even those employers and employees most vigorously opposed to it simply had no choice but to accept it. When quizzed about the reasons why they oppose WFH, most employers’ main reason will be that they fear a drop in productivity when the employee is left to his own devices. And even if surveys suggest that during the pandemic employees were in fact more productive working from home – because the daily commute was converted mostly into working time – the perceived lack of supervision on WFH remains a source of concern for employers.

In these times, where work that can be done from home will mostly be done by computer, information technology may at first glance offer a solution to these concerns. Over the years, numerous tech solutions have been developed to monitor employee productivity. This past year, there’s been an uptick in reports of companies using monitoring software to keep tabs on their employees working remotely, turning to technology to track their keystrokes, number of e-mails sent and internet search histories, even tools to take periodic screenshots of their computers.

But you don’t need special software for this purpose. Our trusted Microsoft Teams, that rallied us through the pandemic? Existing software allows the IT administrator to draw up Teams activity reports which give insight into what users are doing in Teams. You can see how many users communicate on an unplanned basis through unscheduled meetings, how many meetings a Teams user has organised or participated in, how many messages they have sent, how long they are online, and so on.

So the possibilities offered by technology are limitless, but what about the legal and HR side to all of this? In Belgium, as soon as you step into the arena of e-mail and internet use, waiting for you is National Collective Labour Agreement nr. 81 on the monitoring of e-mail and internet use to consider. This CLA of 2002 predates the GDPR and is seriously outdated, but the principles still apply today:

The monitoring has to be for at least one of four purposes set out in the CLA (one of which is the monitoring of compliance with the company’s IT policies, which may prohibit excessive use of internet and e-mail for private use);
Employee representatives should be involved in the process of introducing the monitoring and employees should be informed of the fact that they may be monitored and why;
Individualised data about an employee’s e-mail and internet use may only be accessed after a general warning has gone out to all staff that an irregularity regarding the company’s policies has been observed and that the administrator will proceed to individualisation (linking the data to an individual user) if an irregularity recurs. To avoid all confusion, however, this two-step approach is only required where the purpose of the monitoring is to ensure compliance with company policies (as will be the case here) —  it is not required where the monitoring aims to prevent unlawful or reprehensible acts (frequenting terrorism sites or distributing porn, for example) or to protect the company’s economic interests (leakage of confidential data, etc.). In these case, individualisation may be immediate.

In addition, when monitoring employees’ productivity, there is also the GDPR to consider. Data about an employee’s productivity will count as personal data. The processing will require a legal basis. The Belgian Data Protection Authority believes that, depending on the circumstances, this may be found in the employer’s contractual authority over the employee. Furthermore, the purpose of the monitoring should be lawful and the monitoring itself should be both proportionate and transparent. It may well be recommended that employers perform a Data Protection Impact Assessment (DPIA) to decide if and how to carry out the monitoring.

Similarly, depending on the methods used and the number of employees impacted, Belgian employers should not forget to apply the procedure for introducing new technologies (National CLA nr. 65) and the information and consultation obligations it entails.

If the legal constraints aren’t off-putting enough in themselves, there is also the HR side of things to consider. Surveys suggest that closer monitoring of productivity has a doubly counterproductive effect: those whose productivity may indeed cause concern will find creative ways to fool the system (applying the age-old principle of “you get what you measure”), whereas the good performers will be demotivated by the lack of trust from management implied by the monitoring.

Ultimately, the motives of the employer which wishes to monitor its employees are noble: the aim is to balance the employee workloads, delegate work to the most appropriate people, making sure that work is distributed evenly and prevent certain employees burning out while others are, in either relative or absolute terms, slacking. There may be less intrusive ways to achieve this goal, and they come down to good visibility on respective workloads and the delivery of outstanding assignments.

Project and task management software, for example, comes in many different varieties, but it all has the same purpose: helping the business manage, organise and assign resources and tasks related to various projects. Work can be assigned through the software and at any point the manager can log in and see which employees are assigned to which projects, and if any employees need more (or fewer) tasks to fill their day. Introducing a policy around self-reporting may also help employers to get a picture of workloads: employees may be asked to regularly report on workload, via a brief email to a manager or at weekly team meetings, explaining which projects they’re currently working on, how busy they feel, and whether they feel capable of taking on more responsibilities.

None of these solutions is the be-all and end-all, but neither are the tools that track the number of e-mails an employee sends throughout the day. While tracking data can help uncover team or individual productivity issues, it’s not a replacement for human perception and managerial judgement.

Finally, let’s also not forget the value of a good conversation. If Teams is consistently showing stretches of “yellow” in the afternoon, or the output just isn’t there, a conversation may and should be had with the employee, ideally sooner than later. It could be that the employee is indeed struggling to keep focus, and that there should be a reassignment of the work he does from home vs. in the office, or that he should simply come back to the office more often. It could also be that the employee is simply, well, slacking, and that other more stringent measures should be considered, no different from the situation of an employee slacking in the office. But, you may also discover that your employee prefers to play a bit of football in the garden with his son in the afternoon, to pick up again later in the evening, when his manager is already offline, watching the recap of the Olympics. And this flexibility in working time is indeed allowed by CLA nr. 85. Which brings us seamlessly to the topic of the final blog in our series, on the lesser explored topic of working time for teleworkers.

Employment Law Worldview