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Wells Fargo dismisses employees for using ‘mouse jigglers’: surveillance in the workplace

25 June 2024

It was recently reported that Wells Fargo has dismissed a number of US employees who were alleged to have used ‘mouse jigglers’ to create the false impression that they were actively using their computers for the purpose of fooling employee monitoring software. Although not occurring in the UK, this story is just as relevant here, and there are important legal considerations at play of which employees and employers should be aware.

There has been an increasing tendency, resulting in large part from the explosion of hybrid and remote working following the pandemic, for employers to use surveillance software on employees. One estimate suggests that the number of large employers using such software doubled between 2020 and 2022. Surveillance software can track keystrokes and mouse movements, log which websites employees visit, take periodic screenshots of the employees’ screens, and even track eye movements. Use of surveillance software is highly controversial. Several years ago, Barclays came under fire for using software which tracked when employees were at their desks and warned staff if they spent too long on a break. 

The use of such software raises legal questions surrounding data protection, particularly if it is introduced covertly or if the monitoring is highly intrusive. Any employer looking to surveil employees in this way will need to make all employees aware of this and consider whether there are less intrusive alternatives before implementing a particular strategy. Employers should be carefully advised by a data protection lawyer if they wish to go down this route. 

There are also employment law implications. Employee awareness and proportionality are, again, key, as workers could see covert or over-zealous monitoring as a breach of trust and confidence, leading to constructive dismissal claims against the employer. Informing employees of the extent to which they are monitored is also important if data generated from surveillance could be used as the basis of disciplinary action. Human rights law may also have something to say as, even at work, there is the possibility of a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights. This factor could become relevant in considering whether a dismissal on the basis of information obtained through surveillance is fair.

The existence of ‘mouse jigglers’ and other such evasive technology, which is cheap and widely available, demonstrates the other side of this issue. Where an employer introduces a policy of monitoring its employees, using evasive technology can legitimately be considered a disciplinary matter. This is especially the case in regulated industries such as financial services, where the standard of honesty and integrity required of employees is higher, and an employee’s use of evasive technology will call into question whether they meet this standard.

Aside from the problems caused by using the technology in and of itself, a worker will face risks if they are failing to perform to the requisite level or are spending significant time away from work during the day and using evasive technology to mask these problems. For example, there is a recent trend towards ‘overemployment’, where remote workers have multiple full-time jobs and undertake work for one employer during the normal working hours of another employer. Evasive technology may be used to mask periods of working for another employer. Overemployment masked by ‘mouse jigglers’ creates the same issues in relation to honesty and performance as discussed above, but also may straightforwardly be considered a breach of contract and gross misconduct justifying dismissal. Keep a look out for a future email alert from us which will go into more detail on this specific topic.

Beyond the legal, there are wider cultural questions to be considered. It is evident from the trend towards enforcing a return to office, including through surveillance of office attendance itself, that many employers are distrustful of remote working and are seeking increased oversight of their employees. Technology which extensively monitors worker activity may seem like a convenient way to achieve improved oversight and productivity, but there are important non-legal reasons why an employer might want to hesitate before taking this step. Evidence suggests that electronic monitoring has no performance benefits but decreases employees’ job satisfaction and increases the stress they experience. Additionally, a rigid focus on the sort of metrics that surveillance software monitors, such as time spent at or away from a computer, may lead an employer to lose sight of the end product an employee produces. Autonomy and independence have frequently been shown to be key predictors of work life satisfaction, and a focus on the outcomes an employee achieves for their employer, rather than micromanagement, will often be a better way to accurately assess performance and foster a positive organisational culture.

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