Some employers will approach such monitoring exercises with caution, wary of claims of being branded as Orwell’s Big Brother. Is that justified?
Many organisations are already scanning email and other forms of communication for inappropriate content and comment, and they have a clearly stated communications policy in place. Transparency is critical. A written policy needs to outline what’s appropriate and not appropriate in electronic communications. This policy needs to be disseminated to employees and the employer must be confident they have read and understood it.
’s O’Hanlon says there are some misconceptions to clear up.
“Most people automatically assume that others are reading their emails. However, because we don’t look at content, the type of information we’re looking at is much more aggregate. Fears about looking into individual correspondence – while a company might have the right to do that – it’s not something our tools do. It’s really at that pattern level.”
It’s also important to note that consent must be obtained from employees. “From the privacy point of view, it’s consent-driven,” O’Hanlon adds. “Staff will know what’s going on. They will provide the consent for analysis.”
There are key pieces of legislation that employers must adhere to with any monitoring of employee communications: the Privacy Act; and state-specific workplace surveillance legislation.
Each state has workplace surveillance legislation. The rules are slightly different but some general principles are, in most states, there is legislation which deals with different forms of surveillance: traditional camera or CCTV, tracking surveillance, such as GPS for vehicles, and computer surveillance. NSW, for instance, has the Workplace Surveillance Act 2005. That legislation states that, in order to conduct computer surveillance, certain requirements must be met relating to notification to employees that this surveillance is occurring.
It’s important to note that employee records are exempt from the Privacy Act. But what is and isn’t an employee record is a grey area. Employers must be conscious of what they’re collecting and whether in fact the Privacy Act applies. They also need to aware that they may be capturing non-employee information – for instance, if an employee emails their wife. In those instances, the Privacy Act would likely apply.
McGrathNicol’s Earnshaw has also encountered privacy concerns from clients. He says two words are critical: intent and access.
Employers must be transparent about this monitoring; they must communicate to employees that there is reasonable intent behind gathering this information.
“It’s got to be for the good of the employees and the organisation. It’s not Big Brother spying on everybody,” he says.
As for access, this must be for a particular purpose only, and only by certain groups or individuals within the organisation – for example, the HR manager.
Regardless, Earnshaw is constantly surprised that, despite repeated reminders and warnings, employees still do the wrong thing.
“They’ve used a word being tracked by an internal filter and they’ve been prompted that they are being monitored and should be careful. And they carry on. It’s an interesting phenomenon that people are made aware, yet they continue.
“I’m not psychologist but I think people assume that the organisation doesn’t really have the capability or resources to truly monitor what’s happening. And in a way, historically people would be right in that regard. In extreme cases, some people actually want to be found out. I see that in the white collar fraud space – people become careless and a lot of times it’s intentional. They want to be caught.”
Only the start
HR is at the start of this journey, and most organisations are not yet leveraging this level of data analytics just yet. “In most organisations the first thing they’d know is an issue is raised with HR. Then retrospectively they might go back and look at retrieving specific emails that may be presented to them by an employee as evidence of an issue in the workplace, and potentially workplace bullying. This is looking into the future and getting more proactive,” says Earnshaw.
O’Hanlon agrees and suggests that one misconception remains: “This is much simpler to implement than employers might think,” he says. “There is an appetite for doing analytics in most companies but also a sense that big data equals big cost and big complexity. By taking on something like this, which is easy to use, you can get some of the benefits of world’s best big data analytics very simply.”