Opinion: The right not to work – and surveillance by employers – is increasing around the world. Why is New Zealand lagging behind, ask Amanda Reilly and Joshua Fairfield.
Today, a new law comes into force giving Australian workers the “right to switch off” – that is, the right to refuse contact with their employer outside of working hours (unless the refusal is unreasonable).
The legislation is a response to growing awareness of the health and safety costs of stress and overwork caused by being constantly on call. A number of other countries, including France and Belgium, have also recognised such a right or are considering doing so.
However, this does not apply to New Zealand.
The working time regulations are relatively rudimentary compared to the more comprehensive regulations in other countries, although the Minimum Wage Act limits working time to 40 hours per week unless the parties agree otherwise.
New Zealand should consider the right to disconnect for workers. But this needs to go beyond restrictions on when employers can actively contact workers. The government also needs to address the ability of employers to use newly developed technologies to spy on, track and record everything workers do in their free time.
Constant monitoring is now a core feature of algorithmic management software, which collects data from work-from-home laptops, biometric scanners, employee smartphones, AI searches on social media, employee-driven vehicles, and even employee ID cards that feature the Internet of Things.
These devices do not necessarily stop recording when the employee leaves the workplace or finishes work for the day.
Damage caused by 24/7 espionage
Employees who are monitored around the clock cannot truly disconnect from their workplace.
Research has shown that the perception of constant surveillance is bad for mental health and well-being. The misuse of this information by spying bosses, nosy colleagues, bullies or stalkers undoubtedly harms employees.
In addition, data collected from employees’ homes, smartphones and vehicles, as well as biometric data, can be commercialized and resold to third-party data traders.
These brokers are largely unregulated and operate well outside New Zealand’s borders and control, meaning there are few real restrictions on who can buy and use this information.
New Zealand lags behind in worker protection
New Zealand law offers workers little protection from these invasions of privacy and employer demands.
Not only does the law place few restrictions on working hours, but the protection against intrusive data collection provided by the Data Protection Act is more limited than generally assumed. While other countries explicitly regulate data protection in the context of employment, New Zealand does not.
Instead, under the general principles of the Act, New Zealand employers are permitted to collect personal information when it is necessary for a “lawful purpose” related to employees’ functions or activities.
Employers do not have to ensure that employees are informed about and explicitly consent to the collection of their data. They only have to take “reasonable steps” to ensure that employees know why the data is being collected and who will receive it.
Provided the data subject consents, the information may also be used for purposes other than those for which it was originally collected. Under the same conditions, the information may also be transferred to third parties.
Global standards for workers
All of this falls short of new global standards for protecting worker privacy.
The European Union’s General Data Protection Regulation (GDPR) does not allow employers to rely on employee “consent” for surveillance practices. This framework recognizes the economic power employers have over employees.
In addition, the EU is considering banning the processing of certain types of personal data of “platform workers” (such as Uber drivers), including a ban on data collection while workers are not working.
New South Wales and the Australian Capital Territory require active notification of filming and audio recordings when employees work at home and do not allow passive, covert surveillance without a court order. In Portugal, the law explicitly prohibits permanent surveillance by image or audio.
In the US, the Stop Spying Bosses Act is currently being considered, which would prohibit employers from collecting data outside of working hours. And California has passed specific regulations on employees’ rights regarding their workplace data.
New Zealand’s lenient penalties for privacy intrusions stand in stark contrast to those imposed by the French data protection authority. Amazon France was recently fined €32 million ($57 million) for GDPR violations.
Opportunity is knocking
The New Zealand Government has a number of other labour law reforms on its agenda, including reform of workplace health and safety laws, reviewing access to personal complaints and changing the legal definition of worker.
But the right to switch off does not seem to be a priority.
New Zealand can benefit from watching other countries respond to rapidly changing technologies. When the time is right, the government should enact regulations that give workers a real right to disconnect and privacy outside the workplace.
– Amanda Reilly is a lecturer in law at Victoria University of Wellington. Joshua Fairfield is a professor of law at Washington and Lee University.
This article was republished by The conversation under a Creative Commons license.
