Since Covid-19 lockdowns and self-isolation, remote working with associated overtime claims has become the norm, which presents employers with challenges around monitoring and privacy
According to a snap survey in August-September by recruitment agency Michael Page of 200 respondents on its website, 79% of South African professionals were working from home compared with only 26% before lockdown.
This presents employers with an obvious predicament: they have less control and supervision over employees’ work, both in terms of working hours and value.
Employers clearly need to monitor the performance and productivity of employees who are working remotely and may also wish to do so for other reasons. These could be to protect the business’s intellectual property and confidential information, and to ensure that employees (and their electronic devices) are protected from cyberattacks and other security threats.
Before Covid-19, corporate surveillance consisted of "traditional" employee surveillance tools, such as CCTV cameras, biometric access to work premises and other ways of monitoring employees' output and productivity.
With more remote working, we anticipate that corporate surveillance will take more novel forms. These include simple solutions (e.g. telephonic check-in discussions by line managers and ensuring that team members are marked as "available" on the Microsoft Teams application during working hours) to more complex solutions (e.g. keyboard tracking software, stealth monitoring and mobile time clocking solutions).
Although employers are generally permitted to monitor employee performance and productivity, they should bear the following personal information/privacy considerations in mind:
Protection of Personal Information Act, 2013 (POPIA)
In monitoring employee performance and productivity, and to the extent that any personal information of the employee is processed, employers must ensure that the processing complies with the provisions of POPIA, including the 8 conditions for the lawful processing of personal information. Condition 6 (openness) is particularly relevant in this context. Employers should ensure that they play open cards with their employees. In other words, employees should be made aware that their performance and productivity is being monitored by the employer and the employer should provide reasons for doing so to the employee. Employees should also be made aware of instances where a third party service provider is monitoring their performance and productivity.
Employers should also ensure that they are adhering to the technical and organisational safeguards under section 19 of POPIA in relation to the information that is collected for this monitoring purpose.
Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (RICA)
Employers must also ensure that they are compliant with the provisions of RICA. RICA restricts the manner in which a person may intercept the communication of another person (in this case, how an employer may intercept the communications of its employees).
RICA prohibits the interception of communications unless a specific exemption can be established. While there are several exemptions, RICA provides that a person (an employer, for example) may, in the course of carrying on their business, intercept any indirect communication (while it is being transmitted over an electronic communication system):
- by means of which a transaction is entered into in the course of that business;
- which otherwise relates to that business; or
- which otherwise takes place in the course of the carrying on of that business.
However, in order to avail itself of this exemption, an employer must meet additional requirements:
- the interception must be effected with the express or implied consent of the "system controller";
- the interception may only be used for monitoring or record-keeping purposes: firstly to establish the existence of certain facts; secondly for purposes of investigating or detecting the unauthorised use of that electronic communications system; or thirdly to secure, or as an inherent part of, the effective operation of the system; and
- finally, once the above requirements have been met, the employer must demonstrate that the interception pertains to the electronic communications systems that has been provided for the use of the business and that the employer has made all reasonable efforts to inform the relevant employees, in advance, that the communications on their system may be intercepted.
Alternatively, the employer may seek the consent of the person whose communications will be intercepted.
Employers cannot assume that all employees are “loafing”. Some staff are working far longer hours than they were in the office, and have found it difficult to set boundaries between their private and personal lives. They may be entitled to claim substantial amounts of overtime pay.
Considering the financial implications of overtime, employers are well within their rights to implement policies and procedures which govern and are implemented solely for the purpose of monitoring overtime work.
It is important to note that not all employees are statutorily entitled to overtime in terms of the Basic Conditions of Employment Act, 1997. Senior managerial employees, employees engaged as sales staff who travel to the premises of customers and who regulate their own hours of work, employees who work fewer than 24 hours a month for an employer and employees earning more than the earnings threshold (currently ZAR205 433.30 per annum) are not entitled to overtime when working beyond their working hours, unless it is stipulated in their employment contracts.
Where employees do not fall within those categories, employers can implement policies that only allow for overtime to be paid out if approved beforehand by the employee's manager. This practice will ensure that overtime is used only where absolutely necessary and where it adds value to the employer's operations.
Additionally, employers should inform employees of best practices for working from home as well as fatigue management, and encourage them to set their own boundaries to achieve work-life balance.