Employees of an American bank were fired because they used a program that simulated their online presence during teleworking days. Is this possible in Belgium?
Wells Fargo bank fired several employees for using devices called “mouse movers” or “mouse jigglers.” Software or small USB keys that automatically move the mouse to make it appear as if there is activity. Popularized by videos on social networks, they can be purchased for a few dozen euros. A phenomenon revealed by Quartz, Bloomberg and the BBC and which shows that many companies continue to be wary of teleworking. This results in increased control and employee disengagement. Which, according to Slate, raises the following question: are employees being monitored because they cheat? Or are they cheating because they are being watched? One thing is certain, too much control harms productivity. Thus, according to a report from the Gallup firm, distrust and copping explain the disengagement which affects 62% of employees worldwide. A drop in satisfaction further reinforced by a forced return to work. A movement very present on the other side of the Atlantic and, by chance or coincidence, especially in the banking sector.
What about in Belgium?
In Belgium the employer cannot control everything. He is required to respect several laws such as:
- Collective labor agreements 81 (to carry out individualized control, valid reasons are required) and 38 (on the introduction of new technologies)
- GDPR (General Data Protection Regulation), adopted by the European Union in 2016
- The secret of telecoms. Under articles 314bis of the Penal Code and 123 of the law of June 13, 2005, no one can become aware of a telecommunications to which they are not a party without the consent of all parties. Telecommunications is understood in the broad sense (this covers emails, the use of an internet browser, internal or external chat tools)
It should be noted that none of its provisions prohibits stricto sensu a certain surveillance. The latter can in fact rely on the right to control services and the right to property. To know which of these rights prevails (private life versus the right to control benefits) – and therefore the latitude of what the employer can do – will vary depending on the three criteria noted below.
Therefore, this control must be:
- Transparent (the worker must know that he is being monitored and how).
- Legitimate (the purpose of the control must be related to the work). For example, ensuring the protection or security of the company or preventing behavior that is contrary to the law. Or in the event of elements which point to possible violations of the rules.
- Proportionate (control must be limited to what is strictly necessary and not too invasive). With this in mind, in Belgium, most of the time, the permanent use of keyloggers (keystroke and mouse movement recorders) is illegal. This is considered a disproportionate interference in privacy and is strictly regulated. On the other hand, random controls can be considered via such programs, or even by Slack (yes Slack can control you), Hubstaff, Activtrak, Timedoctor, Flexyspy, or even CleverControl.
What are the risks for the employer or the employee?
In the event of a dispute between a worker and his employer on this subject, Belgian law still remains vague. We are therefore still on a case by case basis, where it is up to the judge to decide. If a judge decides that the evidence provided by a keylogger or other surveillance tool was done illegally, it is worthless. Enough to derail a dismissal case for serious misconduct. Because, make no mistake, cheating on one’s online presence, however creative it may be, can be considered a serious offense.
You have a business computer or phone: how far can your business go?
If you have a computer with a portal that is permanently open, the employer in principle has access to all of your activities on this computer. This does not mean that he will be able to happily search everywhere, confer the rules and laws cited above. Do you want to store personal things? Creating a folder titled “Private” will make it much more complicated for your employer to legally access it. In most cases, he will need your presence to open the file or the authorization of a judge.
On the other hand, a company that does not respect privacy laws and principles does not risk much. At worst a criminal sanction (extremely rare) or low damages. Enough to push her to still try to submit evidence obtained illicitly. Especially since there is a reasonable chance of seeing it retained, especially if the employee has been informed of the possibility of an inspection.
Gentle monitoring and unannounced meetings
We can quickly cry excessively, but that is to quickly forget that one of the roles of the manager is precisely to follow what the people who work in his team are doing. However, rather than using divisive monitoring software, there are less invasive techniques to check that the employee is actually working. Unannounced meetings, regular calls, monitoring of production and regular sending of emails (doubled by checking the response time) are some of these means. Asking to remain reachable by Teams or other or integrating the employee into collective projects are two others.
In conclusion, the real problem in the Wells Fargo case may not be possible fraud. Rather, it lies in the fact that by doing so, it shows that it measures the value of its employees by the intensity of their keyboard activity.
And what about the reviews?
Messages sent to professional messaging systems (Slack, Teams or by email) are supposed to be of a professional nature; employers can access them under certain conditions. Most often in the event of an incident, but not always. If you want to criticize your colleagues or superiors, opt for private messaging such as WhatsApp or Telegram, or even less permanently orally. But for the atmosphere, the wisest thing is to abstain.
