New forms of control and surveillance in working life – impact on the working environment
Mona Bråten, Fafo Institute for Labour and Social Research, Norway
The ILPC conference, Leeds 2011
1. Introduction
Working life is one of the areas of society in which the level and extent of control and surveillance has increased considerably in recent years. In the wake of technological development that continuously paves the way for new and more refined methods of monitoring employees, the question often arises as to the consequences this has for the protection of the privacy of employees and for the working environment (Lyon 2002, Stanton and Stam 2003, Thompson 2003, Bråten 2008, Official Norwegian Report NOU 2009:1[1]). This situation raises several topics that are of interest in an Industrial Relation (IR) perspective: it involves for example trust and power in the relationship between the employer and the employee, workplace interactions, the autonomy of employees and their participation, as well as the experience of violation and/or safety in the work situation. It also raises questions related to the regulations of control and surveillance in working life. And it gives some new challenges for the trade union movement to handle.
Control and surveillance in working life take place in a context in which the employer’s management prerogative is set against the employee’s right to privacy protection and a safe working environment. Considerable changes have taken place in work tasks and work organization over the last 20-30 years, and an increasing number of people carry out their work in contact with customers, users, clients, students and others. At the same time the employer’s use of different control and surveillance systems has changed.
In this paper I address issues pertaining to the status of regulations and practices of new forms of control and surveillance in working life in Norway. The main questions are:
1. How is the employee’s right to protection of privacy defined in the employment relationship, and how does this relate to the employer’s right to monitor and supervise?
2. How familiar are the employees with the regulations in this field?
3. How common are the different forms of technological surveillance in working life in Norway?
4. What impact does the use of various control and surveillance systems have on the working environment?
2. Perspectives on control and surveillance in working life
Control and surveillance in working life is not a new topic, and there are many different, more or less “new” forms of control and surveillance measures targeted at employees and the work situation. In this paper I will confine my focus to various forms of electronic surveillance, such as video surveillance in work premises, monitoring telephone calls, e-mail or internet sites accessed. In addition, I will also consider other forms of surveillance such as the determination of positioning and location tracking using, for example, mobile phones or GPS receivers that provide information on where the employees, the company’s vehicles and/or goods are located at any given time, as well as access control that registers where and when the employee is to be found in different locations (hereinafter referred to as ‘fleet management’).
Lyon (2001) links the growth of new control and surveillance forms in working life to the technological development in itself, but also to other developmental features of the “new working life”. Changes in the business structure, technology, work tasks, work processes, organization and management have given the individual employee more responsibility and greater autonomy – individual know-how is often the company’s most important resource. For many people the working day has become more flexible than before, and the boundaries between private and working life have become less clearly defined. More people carry out work tasks in their free time, and more people use the employer’s equipment and resources for private purposes, for example for private communication either on a fixed or mobile phone or by e-mail. By the same token employees are more mobile and less closely associated with the individual employer. Lyon maintains that in such circumstances the old methods of monitoring work are unsuitable and new electronic methods are increasingly being adopted. Work has become more individualized, as have surveillance methods. Earlier, work was often organized so that all employees worked in the same premises and the employer could exercise control by fairly simple, direct methods. The location of the supervisor’s office either centrally in the premises or on a higher level with a view of the factory floor is an example of a direct form of surveillance that can be related to the Taylorist organization of work operations (Thompson 2003).
Today’s surveillance technology is to a greater degree targeted at the individual employee. As organizations have acquired a flatter structure and the number of middle manager posts has been reduced, direct methods of controlling and monitoring employees have more or less disappeared. Nevertheless, surveys from US reveal that there is an increase in what Lyon (2001 p.42) terms “micromanagement”, which entails a growing number of enterprises monitoring their employees’ telephone, e-mail, voicemail and computer usage. Lyon points to the facts that such micromanagement trends are paralleled elsewhere. Thompson (2003) claims that forms of surveillance in working life must primarily be regarded as a central feature of instrumental rationality, and can be best understood as part of the management tools for controlling the work performance. The purpose of such systems is to ensure the growth of self-discipline and social control among employees, thus promoting efficiency at work. Forms of surveillance are changed as a result of alterations in work organization and because technological development opens up for new surveillance tools. Thompson (ibid.) points out that it is primarily the scale and intensity of the new technological forms of control and surveillance in working life that distinguish them from earlier direct and more bureaucratic monitoring methods – both because the surveillance takes place electronically and because it penetrates different social contexts (home, work, society in general).
Discussions of the extent and consequences of different forms of control and surveillance in working life have to a large degree been focused on the circumstances that can explain the growth of new forms of surveillance and the consequences this has for both the employee’s right to protection of privacy and for power in the relationship between employer and employee (cf. Lyon 2001, Stanton and Stam 2003, Thompson 2003). Reference is often made to panoptic and big-brother features to illustrate both new and old surveillance methods in working life (Lyon 2001, McCahill and Norris 2002, Thompson 2003).
3. Data
The data material (hereinafter called SO&K 2010) was collected using a web-based questionnaire. The respondents were recruited via Norstat’s web panel[2], and do not constitute a completely random sample. While the sample in representative surveys is normally drawn from different registers, the participants in Norstat’s web panel are mainly recruited on the telephone and they must be willing to participate in various surveys on the Internet. Norstat’s panel comprises over 82,000 people in Norway, and a sample was drawn from this panel for the survey. The target group was employees/staff in full-time or part-time positions. To some extent Norstat is able to determine the composition of the final sample. This can be done both by sending invitations to groups with particular characteristics (e.g. age, gender, business, sector etc.) and by setting quotas for particular groups. In this case I wanted the composition of the sample to resemble as closely as possible that used by Statistics Norway (SSB) in its labour force surveys in respect of gender, age, education, business and sector. Altogether 6,022 interviews were conducted during the winter of 2009-2010. The final data material was weighted to compensate for some divergence compared with SSB’s labour force surveys.
The sample for SK&O 2010 is described in table A1 (Appendix), which also shows a comparison with the distribution in SSB’s labour force survey for the 1st quarter 2009.
The questionnaire used in SK&O 2010 consisted of approximately 70 questions on the use and consequences of various forms of control and surveillance measures in working life in Norway, and approximately 20 background questions about the respondent and his or her work situation. This paper is based on analyses of a limited selection of these questions.
4. Legislation and agreements in this field
The management prerogative allows the employer to initiate various monitoring and surveillance measures in the enterprise. However, the management prerogative of the employer is restricted by provisions laid down by legislation, regulations, tariff agreements and other non-statutory principles of justice. The regulations that curtail an employer’s opportunity to introduce various forms of monitoring and surveillance in the workplace are comprehensive as well as fragmented. These include, for example, several legislative acts that contain provisions pertaining to monitoring activities that the enterprises are obligated to undertake. These are most often restricted to selected industries and professions. On the other hand, certain regulations restrict an employer’s opportunity to monitor employees. The employees’ right to protection of privacy is laid down by a number of international principles and guidelines, including The UN Convention, ILO’s Code of Conduct, The European Human Rights Convention, the Convention of the Council of Europe and the EU Data Protection Directive. Key national acts and agreements in this field include the Personal Data Protection Act (which implements the EU’s Data Protection Directive), the Working Environment Act, tariff agreements – including the Basic Agreement between the LO (NCTU) and the NHO (CNE) – as well as non-statutory principles of justice. These regulations restrict the employers’ opportunity to undertake monitoring (the management prerogative) in the employment relationship. In its recommendations, the Norwegian Privacy Commission emphasized that Norwegian and international law leave no doubt about whether employees are entitled to protection of their privacy, and that this also applies in the workplace (NOU 2009:1 p. 153).
A set of basic principles of personal data protection has been drawn up, and these principles also apply to the labour sphere (see for example Schartum and Bygrave 2004, NOU 2004:5, Bråten 2008, NOU 2009:1 and various documents from the Article 29 Group[3]). The following principles of personal data protection are of special relevance to the labour sphere:
· the principle of co-determination
· the principle of necessity of collection and processing of personal information
· the concern for proportionality
· the concern for quality of the information
· the requirement for assent from the registered person
Technological development provides increasing opportunities for registration of information about employees, and challenges several of these principles. The Article 29 Group emphasizes that it is often required to strike a balance between specific interests, and argues that the principle of proportionality will be a tool to maintain the balance between the interests of employers and those of employees with regard to various forms of monitoring and surveillance in enterprises. The principle of proportionality is also reflected in Norwegian legislation in this field.
5. Little knowledge about the regulations, but high levels of trust
The study shows that very few are familiar with the regulations for monitoring and surveillance in working life. A total of 38 per cent of the respondents report having little or no knowledge of the applicable rules in this field. Only seven per cent claim having adequate knowledge, while half of the respondents report that they have some knowledge of the applicable regulations.
The Working Environment Act accords formal roles to safety delegates and trade union officials with regard to the introduction of monitoring systems in enterprises and H&S activities. The Basic Agreement between the LO and the NHO further serves to strengthen the role of trade union officials. Against this background I expected to find that the trade union officials and the safety delegates had better knowledge of the regulations than the employees in general. However, I found little evidence to suggest that trade union officials or safety delegates possess more adequate knowledge of the rules governing monitoring and surveillance in working life. Nine per cent of the trade union officials and safety delegates claimed having good knowledge of the regulations and 55 per cent reported having some knowledge, while as many as 33 per cent reported that they had little or no familiarity with the regulations that govern the use of monitoring and surveillance systems in working life.
On the other hand, the level of knowledge is not that much higher among managers than among trade union officials and safety delegates: as many as 29 per cent of the managers respond that they have little or no knowledge of the rules that apply to monitoring and surveillance in working life. It ought to be a matter for concern when one-third of all managers, trade union officials and safety delegates respond that they have little or no familiarity with the applicable regulations. The fact that the regulations in this field are assessed as comprehensive as well as fragmented (NOU 2009:1) may perhaps be seen as an extenuating circumstance to the conclusion that the prevailing level of knowledge appears to be disturbingly low. The inclusion of a special chapter on monitoring systems in enterprises in the Working Environment Act in 2005 appears to have been insufficient for increasing the knowledge and awareness of these issues among various actors in working life. There appears to be a prominent need for a further clarification and better awareness of the applicable regulations in this field. The Privacy Commission called for establishment of a unified set of regulations that clearly demarcate the boundaries for protection of the integrity, privacy and personal data of job applicants and employees (NOU 2009:1). The commission argued that the legislator should seek to establish regulations in agreement with the employees’ and employers’ organizations, in which the required balance between interests of the two parties are rendered visible. In the commission’s opinion, an appropriate and wellbalanced set of regulations would contribute to ensure compliance by the parties (p. 22).
The Privacy Commission also emphasized the importance of including safety delegates more closely into activities related to data protection at the enterprise level in order to improve competence related to privacy issues, and this is encouraging. My study shows that safety delegates and trade union officials participate actively in the efforts to establish agreements/guidelines for monitoring and surveillance in enterprises where such representatives are found. At the same time, we have seen that there is a large need for better knowledge about the regulations among safety delegates and trade union officials. More familiarity with the regulations will be required to make these representatives able to safeguard the collective and individual interests of the employees with regard to data protection and working environment issues when new surveillance systems are being introduced in the enterprises.