How many times do you move your computer mouse? How many programs do you open? How many emails do you send? Which websites do you visit? These questions and more are the target of productivity software increasingly used by U.S. employers.
Monitoring productivity common among blue-collar workers (how many items a grocery store cashier scans per hour, for example) is now being used more often in white-collar jobs through the advent of artificial intelligence (AI). Remote work has spurred companies to find ways to gauge their employees’ work engagement.
Employee monitoring programs, however, often fall short in truly assessing an individual’s performance on the job and can lead to unfair employment outcomes, including wrongful termination and unpaid wages.
Workers Can Be Monitored Without Their Knowledge
Employees may be surprised to learn that employers do not have to announce how and when the company is monitoring the workday.
A September 2021 survey of 1,250 U.S. employers revealed the following:
- 60% of companies with remote workers use monitoring software to track employee activity and productivity
- 88% of employers terminated employees after implementing monitoring software
- 81% of companies saw an increase in productivity after implementing monitoring software
The employers surveyed said that the main goals of employee monitoring are to understand how employees spend their day, ensure employees work a full day, and determine whether employees use company equipment for personal use.
Most employees know they are being monitored, but 14% of companies have not informed their employees of how they are measured for productivity.
A few states require employers to inform employees of monitoring activities. Connecticut requires any company that monitors employees to inform them in writing and detail the tracking methods used. Delaware has a similar law. A New York law that took effect in May 2022 requires employers to notify new hires of the monitoring activities and to post a “notice of electronic monitoring” in the workplace.
Employee Monitoring Varies by Industry
Certain industries are more likely to measure worker productivity with monitoring software. The strategy is more prevalent when a client is billed by the hour.
Industry use of artificial intelligence to monitor worker productivity is as follows:
- Advertising & Marketing: 83%
- Computer & IT: 77%
- Construction: 71%
- Business & Finance: 60%
- Manufacturing: 60%
- Personal Care Services: 52%
- Education: 49%
- Healthcare: 46%
- Retail: 42%
The survey showed that workers not engaged in work are often spending their time surfing the web or posting on personal social media.
AI Cannot Measure All Employee Activity
Remote and on-site employees are subject to trackers and idle buttons, with pauses in perceived work leading to lost pay or termination.
An August 2022 New York Times article gave several examples of how artificial intelligence fails to fully capture worker productivity.
Carol Kraemer, a finance vice president, noticed her first paychecks at a new employer did not reflect her $200/hour rate. She then learned that her employer only paid for hours the system detected active work. The system cannot capture offline work, creating an inaccurate portrait of worker performance.
Monitoring software cannot capture work conducted off the computer:
- Reading printouts or other physical documents
- Brainstorming solutions to problems
- Calculating math equations on paper
- Counseling clients
- In-person meetings
Kraemer admitted to mindless busy work to collect keyboard clicks to improve her perceived productivity.
Unintentional Consequences of Some Tracking Programs
Productivity tracking may have other unintended consequences. In another example, the Rev. Margo Richardson of Minneapolis works as a hospice chaplain. Her employer began to require chaplains to earn productivity points. Each activity was assigned a point value. A visit to the dying was 1 point and participating in a funeral was 1.75 points. A phone call to grieving relatives was only given .25 points.
The system encourages her to choose activities for their point value, not necessarily where the need is greatest. Feeling that the tracking system left her unable to fulfill her calling, she quit.
In many cases, the workday is extended to reach 40 hours each week. The reasons for this are many but include the need to have “online” work to compensate for time working “offline.” Other workers have extended days because of their inability to have constant computer activity.
According to Kraemer, she finds she must be in front of her computer for up to 60 hours to get 40 hours counted and paid. She has since left her employer and sued for unpaid wages for work that was not tracked.
Legal Options for Employees Unfairly Targeted
Activity-tracking software can provide employers with data to better understand worker productivity. Despite some advantages, AI cannot fully recognize all employee productivity during the workday. This data can be misleading and result in unfair employment actions against the worker.
If you have been unfairly denied wages or were wrongfully terminated, contact our skilled attorneys at Shellist Lazarz Slobin. Our focus on employment law provides insight, knowledge, and experience not found at other firms. We have offices in Houston, Los Angeles, and San Diego and can help clients anywhere in the U.S.
Schedule a consultation to discuss your case by calling (713) 352-3433 or contacting us online.