Employee ‘Spyware’ – An Ethical and Legal Dilemma

Tracking devices on delivery trucks and security cameras in retail stores have become commonplace when supervising customers and employees. However, in the global transition to working from the home since COVID, new technology is being used by employers to monitor the workspace.

This technology enables employers to watch their employees without them being aware that it is occurring. Webcam access, random screenshot monitoring, keystroke monitoring, geo-locational tracking and audio surveillance are just some of the software options available. The ethics and legality of these options should be weighed before implementation.

Invasive software equipped with live camera feeds and audio monitoring may be in breach of legislation such as Section 11(1) of the Surveillance Devices Act 1999 (Vic). This states “a person must not knowingly communicate or publish a record or report a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device", unless it is with the express or implied consent of the participants.

Secondly camera and audio monitoring may breach legislation such as Section 9B of the Surveillance Devices Act 1999 (Vic). Stating “it is illegal for an employer to knowingly install, use or maintain an optical surveillance device in a toilet, washroom, changeroom or lactation room”. Similarly, camera and audio monitoring of employee’s work can lead to privacy concerns.

Whilst employers now have innovative opportunities to improve the well-being and productivity of their employees, they need to be mindful of the legal and ethical constraints which protect employees. Paramount to this will be ensuring that the way employers monitor their employees is not overly invasive.

For all employment-related matters, please contact our Employment Law Team on (03) 98709870 or email us .

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