How much personal information do you want your bosses to have about your home life? Thousands of New York residents are working from home as a result of the Coronavirus, but could their computers be opening them up to unwanted sexual advances? As more employers turn to productivity apps to monitor remote workers, could sexual harassment take on a new virtual form?
The nationwide response to COVID-19 has caused as many people as possible to work from home to reduce their risk of exposure. While essential workers, medical professionals, cooks, grocery clerks, and others have been working on the front lines, many employers with office workers have suddenly discovered that they can work from home, rather than being laid off.
However, employers aren’t simply trusting that their employees are really working while they are on the clock. Demand is surging for software to monitor employees and their productivity. These apps are not new. Wall Street firms have been using them for years, often without giving their employees much say in the matter. However, the coronavirus outbreak has turned them into a hot commodity. One such program, Hubstaff, reported that its monthly users have tripled since March.
As one New York Times reporter soon learned, these productivity apps often pick up more than even employers intended. In one month of using Hubstaff’s productivity app, reporter Adam Satariano and his editor, Pui-Wing Tam quickly found the app got a little too close for comfort:
“After three weeks of digital monitoring, the future of work surveillance seemed to both of us to be overly intrusive. As she put it, ‘Ick.’”
Employees clock in to the app on their work devices. Every few minutes, the app:
“The technology raises thorny privacy questions about where employers draw the line between maintaining productivity from a homebound work force and creepy surveillance.”
However, not everything the productivity app captured was work related. Satariano related one occasion when he had not logged out of the app and it captured him participating in an internet exercise class. This raised concerns for him about what would happen if he had used his work computer to view medical documents or financial information.
“I trust Pui-Wing, but the monitoring systems have few safeguards to prevent abuse, and they rely on managers exercising judgment and restraint.”
That lack of safeguards makes the productivity app a tool for managers and bosses looking for ways to manipulate their employees. A stray email or even an advertisement could give a boss key information about an employee’s personal life and expose that employee to discrimination or online sexual harassment. Here’s a hypothetical example.
Let’s assume that Alice is a newly home-based worker for a company that has just begun using Hubstaff. She doesn’t have a company-assigned laptop, so she has been using her personal computer for work. Her boss, Bradley, requires her to install Hubstaff on that computer and to log in and out each day.
In the course of the day, Alice opens her personal email during lunch. She receives an email from a clothing company about a lingerie sale. Curious, she clicks. Now, the search engines and ad targeting algorithms know she’s looking for bras. When Alice logs back in to work, the targeted ads keep showing her women’s underwear. In an office setting this might be slightly embarrassing, but the chance a manager would see the misplaced ads would be minor. However, because Alice’s company is using a productivity app, everything Alice does on her computer is captured and presented to her manager for review.
When Bradley goes over Alice’s Hubstaff report, he can see the ads even though Alice was logged out while she was shopping online. Bradley threatens to report Alice for looking at indecent pictures on company time. He says that unless she agrees to an intimate video conference call he will send the pictures of bras to his boss and recommend disciplinary action.
This kind of quid pro quo sexual arrangement -- where Bradley demanded sexual favors from Alice to avoid negative employment actions -- falls clearly in the category of sexual harassment. Other productivity apps that use a computer’s webcam could also result in sexual harassment claims based on stalking or unwanted surveillance. However, many employers won’t have taken the time to develop strong anti-harassment policies for their newly remote workers. If an employer fails to respond to claims that a manager is using the company’s productivity app for sexual purposes, it could open the company up to a complaint with the Equal Employment Opportunity Commission (EEOC), the New York State Human Rights Commission, or even in federal or state court.
However, sometimes it doesn’t have to go that far. The current working climate means that many employers are making adjustments on the fly. They may be more receptive to constructive criticism about their new work-from-home policies than if an employee was trying to challenge an established way of doing things in the office. This can work in favor of the employee who doesn’t want to lose their job just for filing a complaint.
At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases, including those involving remote workers. We know when to file a claim with the EEOC and how to make the New York State Human Rights Law work for work-from-home employees. We also know that sometimes a well-placed letter or phone call can get employees the relief they need. Contact us to schedule a consultation at our office in New York City, or over the phone.