Detailed home office regulation still not in sight (II): employee monitoring
In this article, we deal with the pitfalls that the monitoring of employees working from home may pose for employers. In this case, the employer’s right to know whether employees are performing the assigned work during working hours and are not misusing working tools issued to them stands against the employees' right to privacy.
Whether an employee works at the employer's workplace or at home, the employer has certain options to check the employee's work. However, the employer must ensure that while doing so, they respect the employee’s right to privacy guaranteed by Czech law and EU legislation.
Working from home has some aspects that justify derogations from the general rules of monitoring employees at the workplace. Employees at home office do not work under the direct supervision of their superiors, which means that it is more difficult for senior employees to perform their duties under the Labour Code, in particular to manage and control their subordinates’ work and observance of working hours, and to evaluate their performance and work results in person. Senior employees thus generally have to rely on electronic means. Some employers therefore request that to facilitate such control, employees remain online during working hours, i.e. show a ‘green status’ in the office programmes they are electronically connected to as to evoke their active work status. This request is usually justified and employers have the right to demand it. However, the value of information thus obtained may be very limited, as it is impossible to say whether an employee is e.g. studying printed materials or surfing the internet instead. Certain derogations may also apply to employees who schedule their own working hours. Generally, all outcomes of employee monitoring should be assessed on an individual basis, taking into account the employee’s job position and work performance.
As regards browsing websites, please also note the provisions of the Labour Code that prohibit employees from using employer's tools and work equipment, including computer technology and telecommunication equipment, for their personal use without the employer's consent. The Labour Code allows employers to check compliance with this ban. However, the monitoring should not be continuous. The principle of proportionality should always be respected, so as not to extensively monitor employees by continuously recording all their activities on the computer. A more suitable solution would be, for instance, to block (blacklist) websites that employees do not need for their work.
Similar principles shall apply to checking the use of a work email box or of a company car equipped with a GPS locator. Another specificity of working from home is the employee's attendance at online sessions or meetings. If the employer provides the employees with the necessary IT equipment and connection, they have the right to demand their attendance. In justified cases, the employee must also allow the online sessions or meetings to be recorded.
Finally, please note that even as regards employees working from home, if an employer decides to monitor their employees’ work, they must have a serious reason for doing so and must inform the employees of the possibility of monitoring as well as of the manner in which such monitoring is about to take place.