Florida firm’s webcam surveillance violates human rights, Dutch court says
A win for workers who hesitate to hit record.
A Florida-based software development firm called Chetu provided a perfect example of how an employer in 2022 can take worker surveillance one step too far. Describing an order issued last week, a Dutch court document (translated with Google Translate) explained that it was wrong for the Florida firm to punish a remote Dutch telemarketer for turning off his webcam—and that firing him for doing so actually violated the employee's human rights.
After the employee (whose name is redacted in the court document) repeatedly refused to turn on his webcam in August, the company terminated his employment abruptly via an email that explained the termination decision in fewer than 10 words. Chetu apparently cited Dutch civil code as supporting its decision, writing to the employee: “Your employment is hereby terminated. Reason: Refusal to work; Insubordination.”
However, the Dutch court last week ultimately disagreed with Chetu’s reading of the Dutch law, deciding that not turning on a webcam isn’t a refusal to work or insubordination. Instead, the employee was rightly and reasonably defending his right to privacy. That’s protected by the European Convention of Human Rights, according to the court order, which quoted, “video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life.”
Chetu did not immediately respond to Ars’ request for comment.
Pandemic sparks explosion of remote-worker surveillance
This verdict can be viewed as a win for any remote worker anywhere who ever hesitated when their boss asked them to hit record and subject themselves to prolonged surveillance.
As remote work became a default mode for many employees globally through the pandemic, employers began exploring new ways to monitor employee productivity. Demand for employee surveillance technology leapt by 58 percent, Top10VPN reported. This, reported researchers based in Canada and Spain in the National Library of Medicine, was just one part of “an unprecedented COVID-19-induced explosion in digital surveillance” that “has reconfigured power relationships in professional settings.” Current laws, specifically in the European Union, were not prepared to address such “excessive supervision” and data-driven management, researchers warned.
At least, it seems, in the Netherlands, remote workers can now expect to be protected from invalid all-day webcam requests. As a result of the wrongful termination verdict, the court ordered Chetu to withdraw a non-compete clause that limited the former worker’s new employment options. Chetu also had to pay a fine of $50,000, as well as the employee’s back wages, unused vacation time, and court fees.
TechCrunch reported that in Florida, where Chetu is based, there are at-will employment laws that cover Chetu so that the firm can fire any Florida-based employee for any reason that doesn’t violate labor laws. The email that prompted the Dutch-based employee’s firing suggests that the firm did make some attempt to consult Dutch civil code before making their termination decision but seemingly didn't think to check what's protected by law under the European Convention of Human Rights.
Beyond webcam surveillance
In court, Chetu likened its webcam monitoring to the experience of monitoring an employee in an office, where the employee could be physically seen at any time by anyone. The employee argued that unlike physically being seen in an office, webcam monitoring made it feasible for recordings of the employee’s activities to be stored or otherwise used. The court decided that it was unlikely that Chetu would store the recordings, and that rather than the case being about data privacy concerns, it was the basic right to privacy that was being infringed.
Before he got fired, the employee’s initial pushback to the webcam request pointed out that he considered Chetu’s webcam request an invasion of his privacy and that Chetu had other ways to monitor his activity that the employee found more agreeable.
“I don’t feel comfortable being monitored nine hours a day,” the employee wrote, sending the fateful email asking his Chetu supervisor to reconsider the requirement and likely not expecting that Chetu's reply would be his immediate termination. “You can already monitor all activities on my laptop, and I am sharing my screen.”
In 2020, the Electronic Frontier Foundation termed management’s increased use of employee digital surveillance technology “bossware.” EFF charted the most invasive features of popular bossware products, like logging every keystroke or screenshotting, and warned remote employees that bossware could lead to legal claims against employees. “While aimed at helping employers, bossware puts workers’ privacy and security at risk by logging every click and keystroke, covertly gathering information for lawsuits, and using other spying features that go far beyond what is necessary and proportionate to manage a workforce,” EFF wrote.
Two years later, Pew Research reported in February 2022 that remote work has become a choice, not a necessity, and McKinsey’s American Opportunity Survey in June warned employers that flexibility of working arrangements is the third biggest motivator to change jobs for American workers. Retaining employees likely means offering remote solutions from now on, and for management types who feel more comfortable in an office setting, the impulse will likely remain to calculate all the data points they collect on remote workers in hopes of realizing the maximum benefit from granting remote work.
As employers continue to manage employees who prefer to work remotely, EFF says that it can be difficult to track new ways that employers may be monitoring employees, because there has become a market for bossware products, despite little proof that any of it improves productivity. And it seems likely that as things evolve, US workers will have little recourse to push back. Just as the Florida case demonstrated how different labor laws can be globally, EFF notes that in the US, labor laws differ from state to state. EFF says this means that “workers often have limited legal recourse against intrusive monitoring software.”
EFF did not immediately respond to Ars’ request for comment but recommends that state and federal regulators establish employee protections to prevent surveillance, minimize data collection, and guarantee employees know how and when they are monitored. Should an employer violate any of those protections, the employee should have the right to sue, EFF says.
Until such protections exist, it’s every employee for themselves, and EFF says that fears of being fired like the Dutch telemarketer experienced could cause some people to never question privacy violations. “A choice between invasive and excessive monitoring and joblessness is not really a choice at all,” EFF’s blog says.
EFF recommends that workers “consider that work devices may collect everything—from web history to private messages to passwords” and never make personal use of a work device. If an employer wants to install monitoring software, EFF recommends requesting or purchasing a work-only device.
This article, written by Ashley Belanger, appeared first on Ars Technica.
