The generalization of teleworking induced by the health crisis has upset professional practices.
In September 2020, a third of employees in private sector companies worked remotely. These new government-sponsored schemes have given employers ideas of control to ensure that estrangement does not mean slackening. But be careful not to cross the limits …
Is the monitoring by the employer of the activity of teleworking employees legal?
In face-to-face, nothing prevents an employer from monitoring the activity of its employees. The employment contract indeed supposes a regular control of the good execution of the services without the staff having to complain.
As remote work is a practice equivalent to face-to-face work, the employer would have the same power to check that the tasks have been carried out.
This right must, however, be justified by the nature of the task to be accomplished and remain justified in view of the objective sought. Clearly, certain practices are prohibited.
This concerns in particular the violation of the secrecy of correspondence and in general the violation of the privacy of private life (personal information, etc.)
To be legal, the surveillance must be known to the employee. The latter must have been informed of the control of his activities which may relate to:
- Monitoring via the computer (connection time, duration of activity on the screen, etc.)
- Checking the connection and disconnection time to check the duration of the daily working time.
- Monitoring employee by webcam or screenshot.
In France, respect for the private life and personal data of employees is governed by two texts, namely the Labor Code which guarantees the protection of personal data in the context of work and the General Data Protection Regulation.
Controversial tools capable of remote control
Can we take advantage of Remote Worker?
If living in a healthy environment remains essential, for your personal work, focus on moments outside of working time. Indeed, a host of software has emerged to inform suspicious employers. While many of them are used around the world, in France, their implementation is still very tightly controlled.
Some software widely used in the United States like workpuls is able to control the execution of tasks, the time spent performing them, the time of connection and disconnection, the sites visited, the duration of the Skype visit, the number of emails sent, how often Microsoft One Drive is used, etc.
Others, more inquisitive, integrate a keylogger. This device electronically records the use of a computer and thus monitors keystrokes and mouse clicks.
He can also photograph the employee via a webcam and record the conversations by the microphone of the PC. In France, the CNIL considers the use of a keylogger to be illegal except in exceptional circumstances linked to a strong security requirement.
Other equally criticized software are capable of taking screenshots of the employee at regular and short intervals or of tracking GPS data in order to transmit them in the form of a report to the line manager.
The obligation of maximum transparency with regard to employees
Any employee control system in a company must be subject to consultation with employee representatives.
Employees must also be informed before any such systems are put in place and informed of their rights in terms of controlling their activity (rights of access to the data collected, of rectification, or even of opposition to their use).
Likewise, as soon as the system makes it possible to identify an employee, the employer is obliged to make a prior declaration to the CNIL of the setting up of a remote control.
Failure to declare will work in favor of the employee during an appeal to industrial tribunal .
If supervision is planned and known, the employer must allow time off during which he will not be authorized to supervise his staff.
For more peace of mind, do not use your personal equipment
In general, people working remotely are strongly advised against using their personal equipment, particularly the computer, and favoring the use of equipment supplied and controlled by the company.
Otherwise, they must protect access to their personal data. It starts with securing the internet connection and removing guest Wi-Fi.
The use of “spyware” is therefore strictly prohibited in France and the tools used cannot be installed without the knowledge of employees. Any deviation can therefore be the subject of an appeal to the industrial tribunal.
Remote work requires support for this new way of working to be a source of well-being at work.