The Right to Privacy in Employee Monitoring

* Pragya Mittal 

(Source:NueroLeadership Institute)

This article studies the growing trend of unchecked workplace surveillance in both private and public sector, highlighting its conflict with the Right to Privacy under Article 21 of the Indian Constitution. Recently, this concern has become particularly acute for sanitation workers, whose livelihood is directly linked to invasive GPS tracking using Human Efficiency Trackers. As blue-collar workers are often unaware of their rights, they are subjected to continuous tracking in the name of efficiency, resulting in open violations of their fundamental rights. Along with this, the invasive digital monitoring of office workers, without informed consent, blurs the lines between work-life boundaries. The lack of effective legal safeguards makes the situation even worse and exacerbates power imbalances. The paper advocates for constitutional recognition of the right to not be monitored under the ambit of Right to Privacy. The author also proposes alternatives for implementing supervision in an efficient but less intrusive manner. Ultimately, it aims to call for legal and policy reforms to restore balance between workplace productivity and individual dignity in the digital age.

I.                INTRODUCTION

In the digital era, workplace surveillance has become increasingly pervasive. Technology is being leveraged to monitor employee’s activities, locations and communication.  The reach of employer oversight has been expanding, from location tracking of field workers to digital surveillance of office workers. Surveillance was introduced for the purpose of productivity, security and efficiency but the means used have raised serious concerns about privacy.

Recently, this has been taken to the next step, by Indian city’s Municipal Corporations. The physical location of sanitation workers is tracked using Human Efficiency trackers. Their livelihood is totally reliant on constant monitoring as these gadgets not only track their position in real time but also serve as the only foundation for paying them. Workers’ rights are further undermined by this oppressive system, which leaves them with no alternative but to obey.

Besides physical tracking, digital monitoring has become equally pervasive. Modern software allows real-time monitoring of what an employee is doing on the screen, keeps a record of all websites accessed, and even records discussions that take place on video conferencing calls. This obliterates the distinction between work and personal life. Workers generally have no choice over the extend and are uninformed about the scope of data collected. The contemporary workplace is comparable to Bentham’s Panopticon, a framework meant to instil self-discipline simply by threatening to be seen. The monitoring of all aspects of a worker’s activity at work puts workers in a condition of self-censorship, thereby defeating their right to privacy.

Although there is existing literature on workplace surveillance, this paper proposed that the right to not be monitored should be considered a facet of the fundamental right to privacy. It bridges a gap in statutes not providing legal protections by drawing from judgements that have declared invasive means of monitoring an infringement on privacy. The paper, by addressing public and private employers, also carries out a horizontal application analysis by extending the constitutional right to privacy beyond state actors into private workplace practices.

This paper argues that pervasive surveillance practices, whether by state or private employers, amounts to a violation of the constitutional right to privacy guaranteed under Article 21. It is proposed that the law must explicitly recognise the right to not be monitored, especially in the context of workplace surveillance.

Part II studies the different means of surveillance employed, specifically location tracking and digital monitoring and the infringement of privacy of employees. In Part III, the discussion revolves around the recognition of right to not be monitored as a fundamental right and the lack of statutory protection available to employees. Part IV proposes policy alternatives that balance workplace efficiency with privacy protection.

II.             THE PARADOX OF PRIVACY IN WORKPLACE SURVEILLANCE

Workplace surveillance is not limited to public sector employees. Both public and private employers must align with constitutional guarantees. This raises the question whether fundamental rights can be enforced against private entities, which can be answered by the horizontality of fundamental rights. Traditionally, the state was the only authority against whom fundamental rights could be enforced under vertical application. However, indirect horizontality, whereby private actors could be covered by several fundamental rights such as Articles 19 and 21, was upheld by the SC in “Kaushal Kishor v. State of U.P.” Drawing from this, the paper contends that privacy protections need to extend beyond state actions and include regulating private sectors as well.

A.    LOCATION TRACKING  

A concerning development in monitoring of field workers is the use of Human Efficiency Trackers for sanitation workers in India. The municipal corporation’s require sanitation workers to wear smartwatches with GPS trackers and cameras. The tracking device is used to track attendance, calculate working hours and to make sure that the workers are at their designated location throughout the shift. These employees often refrain from using restrooms during business hours out of concern that they may be being watched by cameras. To make sure the watches stay on throughout business hours the next day, they must charge their GPS gadgets at home every night. They risk losing their pay if the watch is off because they are deemed absent. As a result, this extent of surveillance raises significant privacy concerns and unfairly burdens the low-wage worker who is forced to comply. Thus, it tends to create a climate of compulsion rather than efficiency by instilling a dread of being watched all the time and the threat of losing pay for any failure to monitor.

In Frank Vitus v. Union of India, the SC set a precedent by ruling that GPS monitoring as a condition of bail infringed upon the “right to privacy”. It was held that the tracking of an individual’s location upon release on bail was inappropriate, even though there was a valid reason for the need to have the accused present at a certain location. If such surveillance is deemed too invasive a violation of privacy for an accused, it is much more unjustified in the case of sanitation workers, whose movement does not deserve such close observation. Further, this judgment points to the technical intricacies involved with location tracking. With sanitation workers’ attendance and wages tied to these incorrect tracking systems, their livelihood stands precarious with even minute errors within the system; hence, such a practice may not be just unconstitutional but unworkable too.

Indian privacy law protects people from arbitrary intrusion by the state in a similar way to the U.S. Fourth Amendment protections against unlawful search and seizure. In Puttaswamy, the court accepts that there is a “reasonable expectation of privacy,” stating that people have a right to personal spaces, including their homes and private communications. The case United States v. Jones held the use of GPS tracking of a defendant’s vehicle to be violative of the defendant’s privacy. The Court made a distinction between long-term GPS tracking, which is a serious breach of privacy, and short-term monitoring in public areas, which would not violate privacy standards.

Although United States v. Jones was decided under the U.S. Fourth Amendment, its reasoning is highly relevant to the Indian Context post-Puttaswamy. While earlier Indian decisions such as M.P. Sharma and Kharak Singh rejected a constitutional right to privacy because there was no provision similar to the Fourth Amendment, stating explicitly that the Court could not “import” the protections in the fourth amendment by “strained construction”, Puttaswamy rejected this reasoning. It recognized privacy as an inherent part of Article 21 protections and relied on comparative constitutional law, including the Fourth Amendment, to narrate privacy’s contours in India. This is why the distinction drawn in Jones is relevant in the Indian Context, especially in cases like that of the sanitation workers, whose constant location tracking through the Human Efficiency Trackers amount to long-term, continuous tracking. 

This is not just a privacy issue, it reflects a structural imbalance of power, as employers, often end up asserting dominance over their workers. The idea that the courts must protect freedoms from undue influence, especially where such actions infringe upon people’ fundamental rights has been affirmed. Therefore, the state must make sure that the monitoring has a legitimate rationale and is carried out without violating the workers’ sense of dignity.

B.    DIGITAL SURVEILLANCE

The term “digital surveillance” refers to the use of a variety of techniques to keep an eye on and record a person’s electronic and online activities. Workplaces frequently employ techniques like keystroke tracking, email monitoring, video surveillance, phone recording, internet usage tracking, and chat message monitoring which raises privacy concerns.

In People’s Union for Civil Liberties (PUCL) v. UOI, the SC had considered whether government telephone tapping was constitutional and affected the right to privacy. It, however held in the case that telephone tapping was a violation. These ideas relate very closely to the problem of digital surveillance at work because, of course, unconstitutional to monitor private communications in chat messages, emails, or phone conversations. A large number of workers are being monitored without permission, and with ambiguous legal protections, it’s open to abuse.

The Puttaswamy judgment laid down a three-fold test of legality, legitimacy and proportionality for determining a privacy violation.  These conditions cannot be satisfied if workplace surveillance, which frequently involves the continued monitoring of all communications and activities by employees, is extended to cover personal conversations and information. In the proportionality test employed by the Court, surveillance must only be as intrusive as it is necessary to accomplish a justifiable and fair objective. However, the idea is meant to steer clear of this very widespread and often unregulated kind of monitoring in the workplace, which is why it is constitutionally dubious.

It has been held that surveillance of a person is certainly infringement of their privacy. Various ruling hold that surveillance is unreasonable and the means are obstructive, it is considered an invasion. When employers fail to intimate their employees about their means and extend of monitoring, it is a clear violation of privacy. The boundaries of legal surveillance have been defined by various courts by holding unjustified and invasive monitoring to be an invasion of privacy. The need for legal safeguards against unwarranted electronic surveillance has been emphasised as well. Privacy is violated by warrantless interception or surveillance of people’s phone calls. The U.S. court has recognized that even non-physical disclosures, such as the home addresses or contact information of employees, run afoul of privacy interests, showing that privacy concerns are not limited to physical settings but extend to electronic ones also. This shows that there is a pressing need for a well-balanced regime that respects the employees’ rights to privacy while giving due regard to legitimate corporate interests. Legislative restrictions and judicial review must be used to guarantee such safeguards against digital surveillance to ensure constitutional principles are not undermined.

III.           THE RIGHT TO NOT BE MONITORED AS A PART OF RIGHT TO PRIVACY

A.    INADEQUATE LEGISLATIVE SAFEGUARD FOR EMPLOYEE DATA PROTECTION   

In India, workplace surveillance is not regulated properly by any legislation. The IT Act, 2000 and the IT (SPDI) Rules, 2011 are the only laws which provide some protection. Employers are required by the IT Act and the SPDI Rules to have workers’ informed permission before collecting their personal information. Employers must make sure that workers provide their express permission and properly explain the reason for data gathering.

The IT Act’s Section 72A guards against unauthorized disclosure of personal data in violation of a contract. Additionally, Section 43A of the IT Act grants the power to create rules that are intended to offer individuals specific rights with respect to their data. Furthermore, this provision protects sensitive personal data or information. There are also some loopholes even though the legislations provide corporate body checks and remedies for non-compliance. First, the lack of a requirement to renew the consent taken earlier would allow the previous consent to justify additional data collection and processing. For example, permission for CCTV surveillance could be interpreted as consent for future facial or gait recognition systems. Second, notice and consent provisions do not require companies to ensure that the terms are presented in a way that the person giving consent can fully understand.

The Digital Personal Data Protection Act, 2023, which has been enacted but is yet to come into force is anticipated to address some of these gaps through its emphasis on accountability, purpose limitation and data minimisation. It was created based on worldwide data protection laws like the General Data Protection Regulation in the EU. Since the DPDP Act is not enforceable, its real-world impact on workplace surveillance remains speculative. However, the current form presents some ambiguous safeguards which could continue to leave employees vulnerable.

Such as, under the Section 7 of the DPDP Act, personal data may be processed without consent for “legitimate uses,” including for employment-related purposes or to safeguard the employer from liability, reflecting a continuation of the discretionary space available under Section 43A of the IT Act and Rule 5 of the SPDI Rules, 2011, which also permitted non-consensual processing in certain cases.

The current draft Act is more restrictive with the language was narrowed down from “purposes related to employment” to “purposes of employment” and removing explicit references such as “verification of attendance and assessment of performance.” Employers are nonetheless permitted under the Act to use data processing for a variety of reasons, including preventing loss or liability, safeguarding trade secrets, and offering advantages to employees, without having to adhere to strict necessity, proportionality, or explicit processing limitations. The fundamental aspect of data privacy legislation is consent, which gives individuals authority over their personal information. However, obtaining voluntary consent is difficult in employment relationships due to the power dynamics.

As a result, despite incorporation of some key features in the DPDP Act, employee privacy remains compromised by the ambiguity of safeguards and the wide reach of non-consensual data processing. Clearer constitutional recognition of the right to not be monitored will ensure that the statutory protections meaningfully enhance workplace privacy rights.

B.    COMPARATIVE ANALYSIS OF WORKER’S PRIVACY RIGHTS  

Contrasting to the robust data protection frameworks in several common law jurisdictions, India currently lacks an addressal workplace monitoring. The right to privacy and data protection in the EU is ensured by Articles 7 and 8 of the EU Charter of Fundamental Rights and further protected through the GDPR, which has put stringent conditions on the data of employees.

The GDPR, alongside national laws, ensures that employees’ right to privacy is not violated by employer surveillance. Such is the case for Austria, Germany, Finland, France, and the Netherlands, these countries have strong national provisions that mandate consultations with employee representatives before the deployment of monitoring systems. In Italy, before the installation of video surveillance, there must be a collective agreement with the works council or in its absence with authorization from the labour inspectorate. In turn, it guarantees the privacy of employees in Spain and requires employers to consult their representatives before deploying video surveillance and geolocation technology.

As examples, there are provisions banning surveillance of the teleworker which involves being filmed by webcam in various EU countries. For Example, Cyprus, under its legislation prohibits the use of webcams to assess performance. Bulgarian Law requires employers to monitor the algorithm to prevent intrusive working hours supervision over remote employees. These rules show that there is now an acceptance of very strict legislative frameworks in curbing employee surveillance by employers, particularly for remote workers.

India, on the other hand, has very little protection for employees against workplace monitoring. Therefore, there is an urgent need for the establishment of a clear right not to be monitored. Such a right is likely to protect employees from intrusive workplace monitoring practices that will reflect respect for privacy and ensure proportionate necessary monitoring under the informed consent principle. It would thus help India harmonize with the rest of the world’s norms in the field of data protection and worker rights.

IV.           BALANCING EFFICIENCY AND PRIVACY   

In the modern workplace, monitoring is often justified as a means to improve efficiency, ensure productivity, and maintain security. This rationale is understandable, but it is important to note that there is a fine line between safeguarding the interests of the employer and violating the privacy rights of employees. The author suggests that the right to be free from monitoring is an important protection for workers, but concedes that some measures may have to be put into place to ensure efficient operation. This can be achieved through less intrusive methods of ensuring productivity and safety that still meet the operational requirements but also respect the privacy of workers.

A. PRIVACY RESPECTING ALTERNATIVES TO LOCATION TRACKING    

Constant location tracking through GPS is invasive. Several alternatives can be used that do not undermine the worker’s self-respect while upholding the required efficiency standards. Among these alternatives is ‘performance-based evaluation’ where employers can focus on the quality of work delivered. For example, in the case of sanitation staff, employers can assess their performance based on pictures of areas cleaned, specific tasks completed, and the adherence to quality standards, rather than tracking their movements throughout the day. This shift doesn’t only save unnecessary surveillance but also puts a greater emphasis on the actual output rather than the process.

Community feedback and peer review are another viable option that can be explored. This mechanism allows the community belonging to the area where the field workers are employed to review their work. Moreover, the peers can also provide feedback on each other’s work. Employer can maintain oversight by directly collaborating with the community. This would also help in fostering trust and shared responsibility, where the workers and community both are empowered by contributing to the evaluation process. On top of this, supervisors can conduct ‘spot checks.’ In this form of monitoring, there can be random checks to ensure that the work is getting done and it would also enable the supervisor to evaluate the way the work is being done.

B.    REDEFINING DIGITAL OVERSIGHT: LESS INTRUSIVE APPROACHES  

Reasonable and workable alternatives can be deployed in place of intrusive digital monitoring means to maintain oversight without invading privacy. An alternative to video surveillance could be access control systems in the offices. Biometric entry and exit mechanism in different areas of the workplace would be a less intrusive monitoring way than constant CCTV surveillance. It would ensure efficiency along with security oversight while avoiding recording all movements throughout the day.

Employee’s performance and efficiency could be assessed using a software that would allow then to log and submit regular reports on the tasks assigned to them and their accomplishments. There is no need monitor each and every keystroke or website visited to ensure the workers are working. Periodic self-reporting systems where they share the progress, outcome and challenges could work.  This shifts the focus from surveillance to accountability while still providing employers with the information they need to assess employee performance.

In order to ensure safety of confidential and sensitive information, instead of monitoring emails, phone calls and messages of employees, encryption of information can be done. This is because encrypted emails and messages and even phone calls secure organization data while remaining secretive in communications. To curb the leakage of confidential information, employers can deploy a mechanism that bars certain keywords or sensitive data from being included in emails sent to external addresses outside the organization’s domain. This way, all critical information is not inadvertently shared, and employees are free to carry out their work. This allows employers to secure their data through robust security infrastructure rather than invasive tracking or monitoring.

With such physical and digital monitoring, these alternatives promote transparency, accountability, and trust in the workplace. They tend find a better balance between employee privacy rights and employers’ operational needs.

V.             CONCLUSION

This paper contends that the right to not be monitored, especially with the deployment of intrusive technologies such as GPS location and digital surveillance, should be recognized as part of the fundamental right to privacy in Article 21 of the Constitution. Recognising this right would offer crucial protection to blue-collar workers, who often face surveillance without informed consent or awareness of their rights, due to inherent power imbalances. It would also address increasingly pervasive digital surveillance of white-collar office employees. While being more aware and educated about their rights, due to the informational asymmetry they tend to lack a meaningful choice and remain subjected to constant surveillance. There are ample alternatives available which are significantly less intrusive available and ensure efficiency and security which the employers seek. Thus, the recognition of the right to not be monitored compel employers to adopt more privacy-respecting measures.

*Pragya Mittal is a third-year student at the West Bengal National University of Juridical Sciences, Kolkata.
Her research interests include commercial law, constitutional law, arbitration and private international law.