[Image by Gerd Altmann from Pixabay]
On March 12, Vineet Jain, managing director of the BCCL group, took to Twitter to voice some thoughts playing on his mind.
Why hasn’t technology advanced such that most people don’t need to go to the office, he wondered. Much good can emerge out of it he pointed out. This included higher levels of personal productivity, among other things. This, he posited, will happen because “No employee can cheat on you… in real life you don’t really know how much work a person has done in one day. Computer camera and real time measurement will change the world.”
The questions on his mind then are what many in the corner office are asking now. Because when he raised it, no one knew Prime Minister Narendra Modi would announce a 21-day national lockdown on March 24. An extension of the lockdown seems imminent in large parts of the country and most people are working from home.
Meanwhile, a news report filed by The Times of India, a newspaper published by the BCCL group, has it that demand for software to monitor employees working from home across sectors has shot up.
“Companies are insisting that employees keep their web cameras on during duty hours…. The lead programmer for an IT company in Bengaluru and mother to a 10-month-old said she has to double-check that her web-camera is switched off every time she has to feed her infant.”
But that is only the tip of the iceberg. Between Jain’s tweet and the news report, there are multiple questions being asked of people such as Swarnima who is at the receiving end. She is a partner at Trilegal and a part of the employment practice. Ought we continue to stay invested in expensive real estate? Should those who are working from home (WFH) be reimbursed for telephone and internet costs? Can we reduce working hours with proportionate salary reductions? Can we end the contract where services of contract staff are no longer required? Many processes need wet signatures. What is the risk with moving it to digital?
Swarnima is dealing with all of it. But when the questions are unpacked, they can be placed in three buckets.
Question #1: Should I monitor employees?
“What nonsense!” exclaims K Ramkumar, founder, Leadership Centre and former executive director on the board of ICICI Bank, when the question was asked of him over the phone.
The workplace revolution, he points out, started over 70 years ago beginning with Hugo Munsterberg, a sociologist who pioneered the humanist movement. Munsterberg asked questions such as: What does self-motivation do to productivity? And, what does structure do to productivity? His early findings suggest that:
- If work is structured, it needs no supervisor
- If it is unstructured, it needs a supervisor
But this is just one way of looking at things, Ramkumar explains.
In the contemporary world, you tell people about the intended outcomes, timelines, and provide them with the resources. His experience is that people deliver upon what is expected. “So, the fundamental debate that those who are WFH will cheat does not stand to scrutiny.”
As for cameras being used to monitor people, he argues, it applies to only a very small population. By way of example, he points out, you may need to know whether a security guard is present at the intended spot. Or a driver is present in a vehicle. At a more sophisticated place such as a nuclear reactor, in theory, a retina scanner can monitor whether operators have their eyes on the screen.
But how do you monitor if they are mentally engaged with their work, he asks. How do you know what the operator is thinking about? What if a security guard is day-dreaming? Or if a driver decides to take off in an altogether different direction?
Swarnima concurs. Though she declines to name any examples, citing client confidentiality. “They want to know how to monitor performance in a scenario when everyone is working from home? People’s children are at home as well. Given there is an obligation on employers to provide creche facility under the Maternity Benefit Act, should employees be given additional paid leave if they need?”
When Ramkumar was at ICICI Bank and did the math, he thought of it as wasteful to pay someone to supervise. To understand if his argument stands scrutiny, he dismantled systems in the human resource department that monitored under what systems people take an off day, such as casual leave, sick leave, annual leave, etc.
Instead, he introduced an honour code. “If someone is sick, accept they’re sick. I’d much rather take their word for it than spend money and time monitoring them. But if it was ever found they are abusing the system, it was made clear they will be sacked. In my 14 years there, no one abused the honour code.”
When extrapolated into a larger system, his submission is that the cost of surveillance outweighs the benefits. Take a camera to monitor for instance. Who’s going to monitor it, he asks? How will you monitor it? How will all the data stored on it be handled?
Question #2: How do I think about monitoring?
The technology to monitor what people do on their screens has been around for at least two decades now. At large technology companies, for instance, emails are tracked, while company issued laptops and mobile phones are monitored. And if people opt for a “Bring-Your-Own-Device” (BYOD) policy, they are asked to provide consent so employers can read data, take-over screens remotely and place applications that can remote-wipe sensitive information if the device is lost.
Now, how ought this be thought about?
Prasanto K Roy, a New Delhi-based policy consultant and technology commentator, is among the more privacy conscious and tech-literate people in India. Until very recently, he was vice president at Nasscom. Before taking up a current assignment that is a sensitive one, he was asked to offer his consent to track the devices as part of the firm’s policy.
Before consenting, he insisted on going over the fine print and offered consent after being convinced that “no humans have access to the data on my phone. Trust was built,” he says.
Roy says this is not unusual. Most multinational companies (MNCs), especially listed ones, want to secure phones on which work emails will be accessed, do some kind of monitoring, and define clear rules and standard operating procedures. The same is true, he says, of all firms offering outsourced services—with extreme strictures in the financial services space, or even stock-broking firms or banks.
There is much history to this. Most MNCs follow certain precedents and “operate within an envelope”.
That this envelope exists was first acknowledged widely when the Wall Street Journal reported in 2017 that Gmail was monitoring user emails. Public anger snowballed when the newspaper reported that Google was letting third party apps pore over user emails as well.
Google’s parent company Alphabet finally got itself off the hook after apologising and arguing that no humans read these emails. Instead, it is sophisticated software that scans emails. This allows the algorithms embedded in the software to study patterns and serve targeted ads. People let it go because there was no human parsing.
In the IT industry though, which works closely with sectors such as Banking and Financial Services (BFSI), where the WFH culture has existed for many years, this wasn’t “breaking news”. Veterans had wrapped their heads around monitoring earlier; the issue was around the hows and whats.
This is why companies such as these and large consulting firms, for instance, have had the time to think through what the envelope conditions ought to be, Roy explains. They have put in place systems such that when the boundaries of this envelope are pushed, the algorithms are triggered to create alerts and call for human intervention.
While this algorithm-driven monitoring is what those in sensitive roles are familiar with, current whispers calling for cameras to be installed to monitor people at WFH have raised some hackles.
“As long as people are not trying to monitor a person, but where is time being spent, that should be enough. For example, if somebody spends an inordinate amount of time on social media when they actually ought to be working and it is flagged off, that is enough,” says Swarnima.
Not just that, before thinking of monitoring, historically how did it evolve also ought to be looked at, says Roy. “You cannot enforce brute-force monitoring. It just won’t work.”
Roy’s assertion is in alignment with the more vocal Ramkumar. “The kind of minds who insist on placing cameras and listening devices have their heads stuck in the Age of the Robber Barons,” he says. “Those were the times supervisors worked at coal mines and were seen as enforcers.”
That is why, Ramkumar says, when he set up Leadership Centre, he refused to have monitoring devices of any kinds there.
“To place that in perspective,” he says, “somebody listening to our conversation right now, must have a higher cognitive ability than the both of us to process what we are speaking about and flag off any discrepancies. How many such intelligent humans will you find and how many conversations will they listen in to? Have people arguing for such monitoring thought about the costs involved? It is an economically stupid idea.”
Question #3: Am I violating privacy?
Just before the lockdown was imposed in Karnataka, Bengaluru-based Shadowfax informed people they can WFH only if they work in front of a camera for nine hours. Following that, a storm was whipped up on Twitter by Unicorn Baba, the company placed a response in the public domain to claim it was a pilot and that it has no such plans. But the damage was done.
Yet another Bengaluru-based entity asked people placed in home quarantine to send in geo-tagged selfies every hour to headquarters from their designated work bay during work hours. If probed, technically, the company can argue it was done to ensure employee safety. On the other hand, it can be argued this amounts to an intrusion of privacy.
Roy’s point here is that most work can be measured and tracked via outcome-based metrics as opposed to physical monitoring. Even a call centre agent is tracked by the number of calls handled as opposed to the time taken to answer a call, and other metrics. It need not be an always-on webcam.
There are exceptions though, for which you could use the webcam with software that would raise a flag, or hand over the call to another agent, if a seat is unattended. In rare cases, you could use an unmonitored always-on webcam record—just as a stockbroker's calls to a client for instructions are always recorded.
But what if an employer argues that a camera be placed in your home? “As a lawyer,” Swarnima says, “I can argue that if cameras are monitoring employees in office, what is the problem if it is your work computer camera that is monitoring you while you work, albeit from home?”
Roy says that argument can be used only if investments are made to isolate the workspace, making it a real extension of the office, to avoid violating the employee's privacy at home.
He points to a US tech giant that worked to create a WFH culture especially for women. “They would pay for expenses incurred while people WFH. They wanted to ensure you could replicate the office environment. So, there should be no bawling kid or barking dog. The room should be air-conditioned, and the WFH employee should have sufficient help so customer calls and online meetings or other work are not interrupted. That's an extension of the office which could allow monitoring for very sensitive work—monitoring that should be sparingly used.”
Rahul Matthan, author of Privacy 3.0 and partner at Trilegal, however, thinks there are nuances. In 2017, the Supreme Court ruled that privacy is a fundamental right guaranteed by the Constitution.
While the Personal Data Protection (PDP) laws are still being framed, the Indian IT Act has a definition for what personal data is—this includes an individual’s financial and medical data.
So, while companies may argue that their employees have been warned not to use their office device for personal work, if an employee nevertheless puts personal information on the device, the employer cannot, simply because it is an official device, access that information. Doing so would infringe on an individual’s personal privacy without the employee’s express consent.
This means a few things.
First, just because information is on an office computer it doesn’t mean that the employee has consented to the employer accessing it.
Second, if a person uses a device provided by a company to access sensitive financial information, while the device can be impounded, the company still has no right to access the individual’s financial information. This creates a complication. What, Matthan asks, if a person is suspected of embezzlement?
While a company may want to search the computer to find evidence of impropriety in an individual’s financial records, the law currently does not permit it. If they want to look, permission must be sought.
Having said that, Matthan files a caveat. That “people are under so much stress and panic given the fear of the epidemic, they will sign away whatever they are being asked to sign.” That is why those like him are going the extraordinary length to counsel clients that in the longer run, when all settles down, people will resent it if they were compelled into something. And that is not in an organisation’s longer-term interest.
Clearly, the world will not be a prettier place by placing cameras in people’s homes. If only life were as simple.
What should employers consider?
- If you aren’t dealing with the issue of monitoring employees yet who are at WFH, start thinking about it.
- Your first instinct may be to deploy cameras or listening equipment. Ignore it. All research indicates that this does not work.
- There are some industries where monitoring is mandated by law.
- But there are issues here too. Monitoring employees who are at a workplace is very different when people who are WFH.
- These include considering the technical infrastructure and understanding to monitor
- Then there are the economic costs of monitoring people.
- There are legal implications as well because individual privacy is a fundamental right.
- In the longer run, you may face a backlash as well from employees.