Can the boss check his employees via the laptop camera? Does he have access to the email program? What is allowed and what is not.
A software that monitors every work step, evaluates professional email correspondence, or uses the screen camera to record whether you are sitting at the laptop – one or the other in the home office has probably already had these or similar thoughts. And they are quite understandable, especially since in the past the limits of employee control were often exceeded with the help of computer programs.
The best-known example is the online mail order company Amazon, which, according to a report by Norddeutscher Rundfunk (NDR), monitors employees using software in real time in order to check whether they are productive enough. Detailed employee profiles were created in such a way that performance drops had consequences for contract extensions, reported ex-employees.
Complete monitoring disputed
It is controversial whether this seamless monitoring is legally flawless. In the German state of Lower Saxony, the data protection authority was running a control procedure, which ultimately prohibited such data collection. But the decision is not final, Amazon can file a lawsuit against it.
Before the pandemic, questionable performance assessments were more likely to be discussed in the so-called “blue collar jobs”. Now the discussion spills over to the office employees who are currently sitting in the home office, typing e-mails or conferencing, chatting and exchanging documents via PC programs.
Employees feel in control
In this context, the media recently reported frequently on “Workspace Analytics” from Microsoft, a tool that can evaluate the activities of 365 users. In the area of control, there is a divergence in perception between employees and managers.
From the point of view of employees, control in the home office is increasing, according to a survey by the career network Xing. Around a quarter of employees in Austria feel more controlled in the home office, but only around seven percent of managers state that they actually do this a little more. In any case, experts have been pleading for a new understanding of leadership since the home office moved in. Instead of control, it takes inspiration.
What is allowed, what is not?
The question remains: what form of control is allowed? Nicolaus Mels-Colloredo, specialist in labor law at PHH-Rechtsanwälte Wien, answers the most important questions:
KURIER: What are the statutory barriers to performance monitoring for the employer?
Mels-Colloredo: You have to move within the framework of Austrian labor law. Control instruments that affect human dignity are permitted, instruments that violate human dignity are not. All control instruments require a company agreement or the consent of the individual. No employer can simply introduce this. What is unsettling for many in the home office at the moment is that they cannot see what is happening in the background. In an industrial workshop, remuneration is based on piecework logic, and efficiency processes are sometimes displayed on a dashboard. Such a control is permissible because everyone gets an insight and the performance of entire departments is mapped.
How can the employer check whether working hours are adhered to in the home office?
In principle, the duty to record working hours always lies with the employer. Of course there are situations where it is not possible. In the home office, but also with field service employees, a boss cannot see whether you start to work at nine or eleven. The employer can therefore outsource this recording obligation to the employee – but he always remains responsible for ensuring that these records are correctly kept and controlled. Seen in this way, nothing changes with the home office. The working hours can be entered in an Excel spreadsheet or in another program; the employer must always check it.
Which control instruments are permitted here?
This cannot be called a generalized one, it is often determined by the individual case. This is about details such as the technical requirements of the tools or the intensity of the control options. In addition, attention must be paid to who the data (from the program) is transmitted to and where the program is hosted. It must be clarified whether there is a legitimate interest in controlling in the desired manner how effectively employees work. The agreement on permissible control instruments must always be made within the framework of a works agreement. It defines which activities are viewed, whether they are checked continuously or randomly. In addition to the labor law requirements, it must be checked under data protection law whether the employer has a legitimate interest in processing the data or whether consent is necessary.
What can you do about illegal controls?
Inadmissible controls include continuous video monitoring of work performance using laptop cameras, profiling or GPS tracking of employees during lunch breaks. If you have the feeling that you are being monitored illegally or illegally controlled, an employee can sue for an injunction in court.
What are the consequences of illegal surveillance?
Data protection issues also play a role here if data has been processed inappropriately. And here the penalties are horrific. They amount to up to 20 million euros or four percent of the company's sales worldwide. It won't go that far if you illegally read an employee's email, but that's the penalty.