Working from home: supervision, control and the need to protect workers’ privacy

The number of people working from home increased during the pandemic. Employers have quickly resorted to modern tools for monitoring and supervising workers, which creates the need for legal regulation and clear moves by unions to protect the rights of workers working from home.

During the pandemic, we learned that there are the so-called essential workers – those who have to do their jobs at their workplaces and on whom the entire social infrastructure actually depends – and the non-essential ones – all the others, who can work from home. The essential workers seem to have received this epithet as a kind of reward for their wider exposure to the risk of contracting the COVID-19 virus, instead of getting higher wages and better working conditions. The non-essential workers got an opportunity to continue their work in the tranquillity, or noise, of their homes.

After conducting a survey on the matter, the British Trade Union Confederation (TUC) rightly warned the public that the possible continuation of work from home threatens to create a new “class division” among workers. Indeed, the actual “social distance” occurs on the essential / non-essential axis, and the anti-pandemic physical distance remains a privilege and an opportunity for those who can work from home. However, if we want to reduce this social distance and draw new lines of solidarity among workers, we shouldn’t focus exclusively on the defensive protection of the rights of “essential workers”.

The “new normalcy” has been going on for two years now, and for the vast majority of workers, working from home has become commonplace. The Statistical Office of the Republic of Serbia estimates that about 9.2 per cent of all employed persons in 2020 were the ones working from home. If we take into account that this only represents the number of the officially employed – not including freelancers, self-employed entrepreneurs, etc. – the number of those who have already been working from home for a long time and are used to such circumstances is drastically higher. In addition, there is a chronic shortage of manpower in service sectors such as the information and communication technology (ICT) sector, and the possibility of flexible engagement is now emerging as part of the employers’ branding strategy aimed to attract labour.

And while the opportunity to work from home is slowly becoming a standard in the growing, better-paid sectors of the labour market, domestic unions are still not developing strategies to enter the predominantly non-unionised private sector industries –industries without which the future of trade unionism is almost certainly non-existent. That is why domestic unions should use the legal regulation of working from home as one of their main strategic points, through which they could mobilize young workers engaged in the private sector and reconstruct trust in unions at least partially.

Do we really enjoy working from home?

According to the first results of the survey conducted by Netokracija (albeit on a small sample) 42.2 per cent of employees “enjoy working from home”, while 27 per cent eagerly await their return to offices. A conclusion of the survey is that most employees would like an opportunity to occasionally work from home and enjoy the so-called hybrid way of working. Job advertisements in ICT activities confirm this conclusion. However, the situation is far from ideal.

If we look at the entire ICT sector, which entails a number of occupations and job positions – from technological and scientific, through marketing, logistics, administrative, all the way to sales and call centres – it’s obvious that workers’ problems vary, and so do the specific conditions for working from home and, hence, their preferences. As a rule, the biggest problems are faced by those groups of workers who work in the lowest paid positions and in in the industries where workers are most replaceable. Their difficulties include a lack of clear division between working and free time, abolition of transportation fees, poor working conditions in their home, lack of depreciation fees for work from home, etc. What worries me the most are the increasingly invasive methods of supervising workers.

In fact, in the midst of the pandemic, a whole new market was created: the so-called bossware software tools for employee monitoring and control. In addition to the usual check-in-check-out features and performance monitoring, these tools can now literally track every move of the mouse and every action an employee takes on a computer, as well as access a webcam. Members of the Unitech Serbia union say that it is not unusual for workers in Serbian IT companies to have software installed that monitors mouse activities and takes screenshots every ten seconds. However, the question is how long these methods will hold in those segments of the labour market where there is a chronic shortage of labour  –such as IT – because they have been known to generate resistance among workers and foster a climate of mistrust and disloyalty.

Those who are not so lucky to currently be considered “wanted goods” on the labour market, and who are paid less, such as workers in call centres, face even more invasive methods of surveillance – video surveillance. Although there is currently no publicly available information that something like this is happening in any of the companies in Serbia, in neighbouring Albania, one of the world’s largest call centres, Teleperformance, tried to impose mandatory installation of video surveillance in employees’ homes. Were it not for the public campaign of the Solidariteti union against this practice and the report that the union submitted to the Commissioner for Data Protection of Albania, cameras would surely have already become mandatory in employment contracts and in employees’ homes.

In Colombia, Teleperformance workers have been pressured to sign annexes to employment contracts agreeing that the company uses AI video analytics tools which can identify workspace objects, including mobile phones, pieces of paper and other items prohibited by company security protocols. To make matters worse, the annex to the contract included workers giving consent to share sensitive data or photographs of children under the age of eighteen that could be found on video or audio material and the obligation to agree to polygraph testing if required.

It should be emphasized that the methods of workers’ supervision, much like the “remote work” itself, are neither just a temporary solution used during the pandemic, nor were they created during the pandemic. Somewhat “softer” methods are common practice in large companies, especially in the technology sector. In fact, data security experts recommend avoiding any use for private purposes of a company computer or personal account associated with any cloud-based applications that can be accessed by company system administrators. It is not uncommon for the management to come into possession of correspondence that the workers thought they were having privately with their colleagues, or use it to undermine the potential organization of the workers in the union.

That makes it very important for unions to give their members detailed instructions for secure communication with colleagues or union organizers. Because of all this, it is more than urgent to focus the union’s organizational efforts on emerging labour sectors: not only because these problems can spark workers’ interest in unionising and motivate them to join a union, but also because unions need contemporary knowledge and fresh members able to carry out structural adjustments to the rapid changes in the labour market.

Realizing that “remote work” is here to stay regardless of the pandemic, and that the very nature of such work will be an aggravating circumstance for unions, global trade union federations have tried to provide instructions for collective bargaining to their affiliates. After surveys initiated by the UNI GLOBAL UNION have shown that a large part of the labour force wishes to continue to work from home after the pandemic, the union agreed on ten key principles for protecting workers’ labour rights. They range from enabling freedom of unionising and collective bargaining, through theright to disconnect, the right to adequate working conditions, to restricting the supervision of workers.

A little over a month ago media reported that Portugal regulated work from home through its labour legislative. To the delight of many, the law prohibited the practice of employers contacting workers outside working hours, obliged the employers to reimburse increased household expenses (internet, electricity, heating, etc.) related to working from home, provided for the possibility of working from home for each parent of a child up to nine years of age (without the need for a prior consent of the employer) and prohibited use of supervision. This news was met with mass approval in the domestic public, and the question arose whether such a thing could be expected in our country?

Photo: pxfuel

It is necessary to legally regulate working from home

In Serbia, work from home is currently regulated by a small part of the Labour Law, and in a very abstract fashion, which leaves a lot of space for the employer to regulate such relations without state restrictions and control. When it comes to employee supervision, it is clear that the current law leaves it to the employer to apply whatever method it deems adequate. Although the methods of video, audio and GPS surveillance are certainly in conflict with the Law on Personal Data Protection, because they deeply encroach on privacy, employers are currently not subject to any restrictions by the Labour Law.

However, it is questionable to what extent the less invasive methods, such as tracking mouse movements or taking screenshots, fall into the definition of a legal and legitimate way to monitor the work of employees. An additional problem is the application of the Law on Safety and Health at Work in the case of work from home. Namely, as this law defines the term workplace as a space intended for performing work with the employer, it also leaves a large space for employers to interpret their obligations under this law. All that the state has done so far on this issue is the development of the Guide to Safe and Healthy Work from Home, which relies on the “good will of the employee and the employer” and which is legally non-binding.

All in all, so many issues and problems plague male and female workers who perform their work from home. We already know that it is not uncommon for their transportation and hot meals allowances to be abolished, that some employers have pushed for the line between working and leisure time to be blurred, and that it is rare for companies to cover additional costs related to working from home. But will the workers’ right to privacy be permanently violated and will an employer provide them with adequate working conditions and honour the obligation to include the workers in the Risk Assessment Act in order for them to enjoy all the protection at work as well as those who work at the employer’s premises will depend on how much we prove to be able to negotiate all this.

If a draft for amendments to the Labour Law, which would regulate the issue of work from home more precisely, appears in the near future, a problem will arise. Representative unions will be forced to participate in negotiations, but, apart from having correct attitudes, they will not have the organizational strength to stand for them. By writing off a part of the “non-essential labour force” by the fact that the unions have not addressed the problems faced by workers working from home, unions will miss their opportunity to mobilize in the very segments of labour that they desperately need. Unfortunately, unsuccessful negotiations in this area will leave the unions with an even smaller chance to reach the workers’ in these particular industries, who will simply – go home to work. Only, who knows what will await them.

Translation from Serbian: Iskra Krstić

This article was ORIGINALLY PUBLISHED in Serbian on Dec 28, 2021.


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