The Telework Virus: How COVID-19 has Affected Telework and Exposed Its Implications for Privacy

Abstract

The COVID-19 pandemic has shifted millions of people from working at their workplace to teleworking from home, generating a new normal: remote work. Remote work will be an integral part of the future of work and has positive implications for the employee, employer, and society. However, as this article aims to demonstrate, remote work also involves hidden, problematic implications for workers’ rights to privacy that arise from its hybrid, technology-based nature.

Remote work creates a new hybrid workspace for employees: the home-office. The home-office combines the logic and structure of the traditional workplace with those of the private sphere of the employee. As a result, the home-office creates an ongoing dilemma with respect to the privacy rights of the employee and anyone near her, especially her family. Because the work is conducted outside the physical workplace, employers are motivated to use various monitoring tools to ensure that the worker actually works. These programs give the employer a foothold in the private life of the employee that continually infringes on the privacy rights of the worker and her family. As this article shows, this is possible because of the state of the law and the increasing evolution of dubious monitoring programs in the tech industry.

Against this background, this article suggests ways to begin solving the privacy difficulty. Because of the hybrid nature of the home-office, the article argues that such solutions need to be applicable both in the workplace context and the tech industry. The article then elaborates three leading principles to solve the privacy dilemma. The first is the proportionality approach. The current state of things leads to the “victory” of the employer’s interests over the employee’s right to privacy. The proportionality approach can rebalance this equation to ensure that the interests of both sides are considered. To ensure that such a balance is being achieved, the second principle is involving a representative of the employee in the process of evaluating the two parties’ needs and rights such that they jointly generate a privacy policy tailored for that specific workplace. Finally, since monitoring companies are what enable the massive intrusion into the employee’s private sphere, the last principle is incorporating privacy considerations throughout the process of engineering tracking programs, by following the privacy by design approach.

Keywords: labor law, employment law, privacy, ICT, IT, remote work, COVID-19, telework

JEL Classification: J81, J83, K31