1 3-5 Rue de Metz PARIS SA à capital variable RCS Paris B Tél. : Fax : SIRET : ELECTRONIC MONITORING AND MANAGEMENT OF EMPLOYEES New risks and new topic of negotiations within the services sector European ADAPT Project Ministry for Employment and Solidarity Labour Relations Directorate Aslaug JOHANSEN Serge GAUTHRONET 1999
2 Electronic monitoring and management of employees 2
3 Electronic monitoring and management of employees 3 CONTENTS Introduction...5 I) - Monitoring and surveillance technologies...9 I.1) - Management by objectives...9 I.2) - Scheduling...10 I.3) - Security software...11 I.4) - Infocentres and data warehouses...12 I.5) - EDM and Workflow Management...13 I.6) - Mobile data processing...14 I.7) - Telephone platforms...15 I.8) - Internet and Intranet...16 II) - The legal framework...19 II.1) - The Act dated January 6, 1978 concerning data processing, data files and liberties...19 II.1.1) - Prohibition of automated decisions...19 II.1.2) - Prior disclosure to employees...20 II.1.3) - The right to object to and dispute the reasoning applied to such data...20 II.I.4) - Compliance with purpose...21 II.2) - The Act dated December 31, 1992, otherwise called the Aubry Act...22 II.3) - The EEC directive concerning occupations involving the use of visual displays and its enactment under French law (Decree N) )...23 II.4) - The 95/46/EC directive of the European Parliament and Council dated October 24, II.5) - Compendium of practical guidelines for the protection of workers' personal data (ILO)...25 III - Toilsome negotiation of company-level agreements Four case studies...27 III.1) - Case study overview...27 III.1.1) - The background to the agreements...27 III.1.2) - The negotiating policies and strategies of trade unions...30 III.1.3) - Scope and limitations of these agreements...32 III.I.4) - The prospects for negotiations at branch level...33 III.2) - Caisse d'epargne de Paris...37 III.2.1) - The background against which the agreement was negotiated - deep-rooted changes at the Bank...37 III.2.2) - Strong trade union involvement regarding new technologies...42 III.2.3) - Protracted negotiations...46 III.2.4) - Outlook - successful completion may be at hand...47
4 Electronic monitoring and management of employees 4 III.3) - Crédit Mutuel de Bretagne...51 III.3.1) - Salient features of the business...51 III.3.2.) - The background against which negotiations are set...53 III.3.3) - Main items in the agreement...58 III.3.4) - Application of the agreement...60 III.4) The Mornay Europe Group...65 III.4.1) - Salient features of the company...65 III.4.2) - The background to the negotiation...68 III.4.3) - Salient features of the agreement...72 III.4.4) - Application of the agreement...76 III.5.) - An insurance company...79 III.5.1 ) Salient features of the company...79 III.5.2) - A work and technology scheme with highly structuring effects...80 III.5.3) - Strong fears among the trade unions...81 III.5.4) - Interruption of negotiations and freezing of the project...83 IV) - The legal framework in a number of European countries...85 IV.1) Overview...85 IV.1.1) - Two sources of law...85 IV.1.2) - Highly complementary legal instruments...87 IV.1.3) - Encouragement to negotiate locally...88 IV.1.4) - The scope of negotiations - considerable differences from one country to another...89 IV.2) - Germany...91 IV.2.1) Overview...91 IV.2.2) - Legal framework...91 IV.2.3) - Company-level agreements...94 IV.2.4) - Practice...94 IV.3 Norway...96 IV.3.1) - Overview...96 IV.3.2) - Legal instruments...97 IV.3.3.) - Labour agreements...98 IV.3.4.) - Application IV.4) - The Netherlands IV.4.1) - Overview IV.4.2) - Legal framework IV.4.3) - Collective negotiations IV.4.4) - Policies and practice - the Government's attitude IV.5.) - Sweden IV.5.1) - Overview IV.5.2) - Legal framework IV.5.3) - Labour agreements IV.5.4) - Practice CONCLUSION
5 Electronic monitoring and management of employees 5 Introduction Preliminary observation It is more difficult to perceive changes in work organization and working conditions in large companies that operate in the services sector than in the industrial sector. These changes come about gradually and do not generally involve a complete transformation of production equipment. However, in recent years, it has become quite clear that some major changes have occurred at the "heart" of relationships between services sector employees and their employers. With increased automation, methods for planning, allocating, monitoring and supervising work are changing. Management methods are moving from a conventional approach hinging on control and hierarchy to electronic management. To properly grasp the significance of the changes in process, it is worth recalling that although major processing chains have long been computerized, control and monitoring tools have largely remained manual or semi-manual. It is significant that in many companies, task assignment, tracking and supervision of pending business continues to be a major part of the work done by first-line supervisors. Company executives complain that, in contrast with the industrial sector, they do not have the necessary tools to compute the cost of processing a file. For a long time, control and monitoring tools were painfully lacking. Ongoing developments in new technologies are now bringing about changes in this situation at various levels. Monitoring and surveillance tools are increasingly included in production software. Workflow management makes it possible to control document flows and job sequences. This type of software is highly effective when used in conjunction with image processing. In this way, not only can files be distributed automatically, but who does what within a given process is determined on the basis of a pre-established model. Applications of this type allow for a variety of work organization patterns to be implemented but, once they are set up, have a highly structuring effect. These packages generally have powerful built-in monitoring tools which provide professional staff with real time data on production and backlog. As a result, the traditional role and status of supervisory staff are changing. Major changes for employees are also occurring in another area - sales. Staff that handles customers in banks are equipped with far more powerful workstations that cater for a broad range of functions (including sales aids). The
6 Electronic monitoring and management of employees 6 schedule manager is one instance, enabling employees to plan their schedule and make appointments regardless of their whereabouts. Because of the power of portable equipment and the development of public networks, the internal flows of businesses can be redesigned - home-based work, entering data at source, doing away with intermediary functions, abolishing time and space constraints to gain direct access to sources of information. These new technologies along with new management practices have led to even more elaborate subdivision of tasks in businesses. For some employees, this means more resources and greater potential for initiative, for others it entails increased job specialization. What is common to all these developments is that employees can be far more readily monitored than in the past. Computer-based systems for performance monitoring are not easy to identify : they often consist in secondary, derived functions that are embedded in the functional software. The introduction of these applications creates tensions, or even open conflicts in businesses. For employees, there are a variety of risks involved - setting objectives on an individual basis, unfair assessment of employee work load and performance based solely on the number of computerized transactions processed, spread of "electronic management", etc. Although, more and more, employees are willing to use advanced tools and thereby maintain their employability, the rapid development of new automated tools for performance monitoring can act as a hindrance to modernization. To solve this difficulty, several companies have entered into agreements that regulate the use of such devices in particular and work organization more broadly. Purpose of the study The aim of this study is to gain a better understanding of this recent trend in the traditional areas that belong to the services sector - the rapid development of new technologies that permit automated monitoring of the workplace - and investigate the way in which the social partners in France have attempted to minimize the risks of abuse and misuse by entering into company level agreements. Based on a selected number of case studies, it examines: the nature of the guarantees obtained and actual practice (extent to which agreements are complied with), the reasons for the breakdown of some of the negotiations on this topic.
7 Electronic monitoring and management of employees 7 This study was conducted on behalf of the Ministry for Employment and Solidarity and is also part of the European ADAPT Initiative entitled "Employee participation in modernization processes". It includes a comparative analysis of legislative developments in this area in a number of European countries. Method This study was carried out using conventional methods of observation and comparison. It was led by a transnational steering committee and emphasized interaction with the businesses that actively participated in the project. In France, four company monographs were drafted based on interviews conducted with senior management and trade union representatives. The comparative study involved four countries - Germany, Norway, the Netherlands and Sweden. In each of these countries, many contacts were made with representatives of the social partners, the national authority that supervises data protection, consultancy firms and university research institutes. The transnational steering committee met on three occasions during the year. It is made up of the members of the EESUN (European Employee Support Network) whose specificity is to bring together a number of independent firms that have considerable experience working together for the social partners in each of the countries. The following firms took a particularly active part in the steering committee's work - Arbetstagarkonsult AB for Sweden, CASA for Denmark and STZ Advies and Onderzoek for the Netherlands. We would like to express our thanks to all those who contributed to accomplishing this study. Paris, 1998 This report was translated into English in 1999.
8 Electronic monitoring and management of employees 8
9 Electronic monitoring and management of employees 9 I) - Monitoring and surveillance technologies In the last decade, among the range of modern technologies for monitoring employee performance in businesses, the only commonplace advanced technology were PBXs (business telephone switchboards), access control systems that use passes and video monitoring. In the last few years a variety of technical solutions for supervising and monitoring the workplace have very gradually entered the market in the form of additional functionalities built into computerized work systems. The presence of these functionalities in application softwares is not always readily visible in as much as they are often secondary to and embedded in the main information processing applications whose purpose is altogether different. This appears to be an inevitable phenomenon. Moreover, the more recent the technology, the more likely it is to incorporate explicit reporting and tracking functions, as advertised in the accompanying sales pitch. This technological development is in line with a deep-seated trend in corporate sales strategies which use information technologies as a tool for handling customer relationships on a highly individual and customized basis. We have now entered the "one to one" marketing era where the customer and associated customer administrator are seen as an economic entity in its own right, whose performance must be assessed. There will be a growing tendency, particularly in the services sector, for the work plan and technology to be entirely built around this principle. As shown below, this will clearly have an impact in terms of monitoring and surveillance in the workplace. Without claiming to be comprehensive, we decided to consider eight families of applications in detail - management by objectives systems, time management, security packages, infocentres, EDM and workflow management, telephone platforms, 'roaming' DP systems and the Internet. To varying degrees, these highly diverse computer applications all support employee activity monitoring, assessment of their performance, and are able to track their every transaction including when and how long it took to accomplish them. I.1) - Management by objectives Employees are increasingly being asked to work towards individual or team objectives. A conspicuous example of this is sales staff who are assigned annual targets expressed as turnover, number of appointments or quantities of
10 Electronic monitoring and management of employees 10 products to be sold. Another is programmers whose objectives are expressed in terms of work load absorbed and lead times. There are now specific packages and softwares available for the purpose of monitoring individual activity, measuring possible deviations, both ahead of and behind initial schedule. As a general rule, they are based on the principle of statement -- i.e., the users themselves enter the information concerning their activity instead of the sheets they previously filled in by hand at the end of the working week or month. Naturally, this method presents no problem in terms of prior notification of employees and fair data collecting procedures, as they themselves are the originators. Computerized monitoring of objectives presents the benefit, for the business, of offering an instantaneous consolidated view of how far an employee, team or work unit has progressed towards the annual objectives. Hence, corrective action can be taken during the course of the year and impetus is maintained. However from the employees' standpoint, there is a problem with who gains access to such data and in what format. Generally, only intermediate management has access to the detailed data, while more senior managers one and two levels above are only entitled to consolidated, nameless data. I.2) - Scheduling Office automation systems that are built into the central system (e.g., the Office Vision type by IBM) or in a network of PC's set up in a client/server environment (such as Notes) support calendar management and personal diary functions. They are used with varying degrees of effectiveness, but they are convenient e.g., for establishing a common time slot for several people to join into a work session together. They are also useful for employees to make appointments while away from their base. These softwares, however, also generally support a supervisory function which provides the person responsible, i.e. the applications administrator, with a broad range of possibilities, e.g., analyzing and publishing data relating to operations performed during a given time interval, appointments taken, meetings, movements, etc. It is therefore theoretically possible to actually audit how working time is spent by an employee or group of employees. Electronic diaries also raise the fundamental issue of loss of autonomy felt by the employees concerned. Frequently, a central department of the business is in charge of planning the schedules of their sales staff. That nearly always leads
11 Electronic monitoring and management of employees 11 to controversy as to whether a department with little or no knowledge of the realities of the sales profession has the necessary competence. Naturally the duration of an appointment will largely depend upon the matter being dealt with. Similarly, in the case of travelling employees, it is important to properly compute and consider the time spent going from one destination to the next. I.3) - Security software Businesses are bound to take steps to protect data processing systems against crime, fraud and malevolence. This need has been sharpened by the development of on-line international networks such as the Internet. More and more European countries are passing data protection laws that require businesses to implement high level security systems for protecting their central EDP systems from unauthorized access. Vendors have gradually developed a range of packages aimed at this particular market segment. The earliest of these softwares and the most common for IBM mainframe environments are RACF and CA-TOP Secret. which have set the standards for this market. They control connections made with the central system, handle a user-accreditation system, authorize access to various resources and guarantee the privacy of the company's data files. These are sensitive applications because they may be used to perform what might at first sight appear to be highly detailed audits of a particular person's earlier activity. This is referred to as traceability, i.e., identification of users, duration of connections, resources used in read or update mode, types of transactions performed, etc. Two sets of problems pertaining to fairness and relevance are raised by practices such as these. Special attention needs to be paid to the way in which the purpose for implementing these procedures is worded (as contained in the declaration filed with the National Commission on Data Processing and Liberties [CNIL] under appendix 7 in principle). Without wishing in any way to prejudge companies' intentions in this respect, the possibility exists that processes may be unfairly conducted from a legal standpoint to the detriment of employees, under cover of data protection requirements. Furthermore, it would be wrong to assess an individual's efficiency at work on the basis of the statistics and workstation transactions volumes derived from these applications. Not only would to do so be in contradiction with the spirit of the French privacy law (Informatique et Libertés), specifically
12 Electronic monitoring and management of employees 12 article 2 ( 1 ) but also with common sense. A few lines of transactions statistics recorded by a security and data access control application afford little more than a very narrow and unreliable view. I.4) - Infocentres and data warehouses Infocentres are very powerful, all-purpose packages which are set up as an additional layer of superstructure on top of the business's data processing system. They support extensive, customized sorting and statistical processing functions for all types of information recorded in the central system's files and data bases. These tools are widely used in marketing departments, but also in financial and accounting departments. They can be directly operated by trained users thanks to their advanced query language. This raises one of the problems relating to application of the Data Processing and Liberties Act since, like PC's, the use of such tools is widely disseminated, unrestricted and largely unstructured. As such they offer extensive possibilities for multithreading between all sorts of data. These possibilities need not be defined at the outset and, as a result, it is difficult to apply the principle of prior notification as stipulated by article 16 of the Act. Infocentres and data warehouses can be used for employee monitoring, e.g., analyzing individual performance of employees who have been assigned a portfolio of customers. More and more businesses are using systems that equate the employees to micro profit centers with their own resources, a customized work station and individualized customer management. In this type of work environment, infocentre software is an essential technological tool. Individual portfolio turnover can be assessed at any time by simply comparing the initial volume with measurements made at regular intervals. This affords a fairly accurate estimate of the sales efficiency of the portfolio's administrator. Infocentre software can also be used to compute the variable item in an employees' compensation. As a result, employees need no longer fill in statements handled by a separate performance management application since the infocentre uses objective data generated from within the production stations. 1 Article 2 of the Act dated January 6, "No court decision involving the appreciation of human conduct shall be founded on automated processing of information that provides a definition of the person's profile or personality. No administrative or private decision involving the appreciation of human conduct shall be founded solely on automated processing of information that provides a definition of the profile or personality of the person concerned.".
13 Electronic monitoring and management of employees 13 I.5) - EDM and Workflow Management EDM and Workflow Management applications are a new generation of computerized tools designed to enhance processing of paper files and productivity in a wide range of businesses with these types of needs. Strictly speaking, EDM eliminates paper flows whereas workflow management supervises job distribution and work processes. An EDM/workflow management system generally comprises four major subsets: Document Acquisition -- documents are digitized using scanners and can be displayed directly on the operators' workstations. Scanning is done in the support units (incoming mail) where operators must index the documents so that they are routed to ad hoc mailboxes attached to the appropriate department, or else to a named destination operator. Routing -- routing is performed by a digitized mail delivery application to mailboxes which can be opened from the workstations. This is the workflow application, a key element in the system as a whole, because it is on this that depends the capacity of the system to adapt to the company's organization. Applications that are too rigid will tend to have a structuring effect that requires a fixed work plan. Ideally, the product should be openended and customizable so that documents can be delivered into to a whole range of mailboxes -- general department mailbox, dedicated mailboxes for particular processes or tasks, personal mailboxes. However, the more differentiated the mailboxes, the more complex the indexing and file allocation procedures are at the initial scanning stage. Access and display -- the required documents are generally retrieved through a network of PCs equipped with 21-inch screens. Mail is displayed on one half of the screen, while the other part of the window is used by the operator to enter the transactions to actually process the file. If the user does not have the material required to process the file as it is displayed, he or she can put it on standby so that it is automatically displayed again within a given time interval, or else reassign it to another operator who does have the necessary information or accreditation. These functionalities too are handled by the workflow management application. These applications platforms, the most well-known of which are IBM's VisualInfo and Flowmark, and Filenet, usually include monitoring and reporting functionalities built into a control system. They enable intermediate managers to control execution of processes, the status of tasks and compliance with lead times practically instantaneously.
14 Electronic monitoring and management of employees 14 Monitoring - this consists in monitoring how files are being processed at any time and at any level within a work unit. A special accreditation technique allows the manager in charge to visualize any of the processes being conducted in his or her department and take steps to reallocate work if the file backlog is found to be unbalanced. Reporting - two forms of reporting are supported by EDM platforms. One is the traditional reporting function whereby various paper or screen reports on operations in process are published periodically. As a rule, any event occurring during the course of any part of a process is recorded in a job log. This introduces a high degree of security and allows errors, and more broadly malfunctions, in the process to be subsequently identified. Some of these applications also offer advanced reporting functions in the form of warnings displayed on the supervisor's workstation which can be programmed so that they trigger when certain conditions occur, e.g., when authorized lead times are overshot. Depending on how they are used, these systems can greatly affect labour relations. They can generate a tendency by management to implement automated decisions (both technical and disciplinary), intensify pressure to raise productivity, give employees the impression of being under continuous scrutiny and create a general feeling of discomfort. I.6) - Mobile data processing For a growing number of employees, laptop computers are becoming their major link with the company. Those most concerned are sales staff, field inspectors, medical travelling salespersons, maintenance engineers, etc. Very soon, all these professions will be carried out using laptop computers connected to the company's central hosts via modems. In some professions that involve constant travel, GSM (radio link) modems are already being used. From a remote location, employees can link up to: - the business's information resources (e.g., product data base, simulation systems, inventory data) - communication and electronic mail (the Notes application for instance), - centralized schedules for the purpose of taking orders, - central data processing chains into which roamers can enter data collected in the field To a certain extent, employees see these laptops as responsible for them losing some of their freedom of decision, although they do recognize that they are
15 Electronic monitoring and management of employees 15 very practical and efficient work tools. For businesses, the data exchanges they support establish closer links with a category of employees which so far were difficult to supervise. It is now possible to instantly know exactly where company employees are located, how long their interventions last, the results they achieve, etc. Another feature of these tools is that they tend to obscure the line that separates working life and working hours from private life and private undertakings. As a result, providing guarantees of transparency and fair treatment of employees concerned becomes of paramount importance. I.7) - Telephone platforms Businesses now tend to centralize the telephone function with both incoming and outgoing connections handled by dedicated operators working on fully equipped technical platforms. Telephone platforms are equipped with a PBX of a special type, called Automatic Call Distributors (ACDs). They support advanced technical functionalities not only for call handling but also interconnection with the company's information system and reporting features. PBXs used on telephone platforms must be capable of managing and routing large numbers of telephone calls. To fulfill that purpose, groups of operators can be configured to match a queuing scheme. As soon as a call is over, the next call in line is presented to the operator in the corresponding group. In the meantime, the caller has been kept on the line with a variety of hold messages, some of which permit some degree of interaction and therefore an initial response. This generation of PBXs also supports an overload management function, so that when the operators' stations have reached saturation point, surplus calls are automatically re-routed to back-up operators. Furthermore, priority rules for the allocation of calls can be customized. In this way, an incoming call will be assigned to the operator who has been off-line for the longest period and calls which has been queuing the longest will be taken first. These PBXs also have supervisory functions that enable managers to reconfigure groups and queues in real time so as to balance out the work load. As described further on, these supervisory features are packaged along with reporting features that publish detailed reports on the platform's activity and quantify incoming and, if required, outgoing connections. The advanced supervisory features in ACDs allow a whole series of data on the telephone traffic processed by the platform to be collected almost instantaneously. This includes, among others:
16 Electronic monitoring and management of employees 16 individual operator activity (using the personal number the user keys in at the beginning of each work session) performance of the operator groups individual performance of each operator time elapsed before a call is taken volume of calls dealt with through standby facilities volume of incoming calls reallocation of calls in queues, volume of aborted calls time spent on-line by operators time spent off-line (i.e., an indirect measurement of the length of breaks) where calls originate from On the basis of this information, platform supervisors and managers can reconfigure the ACD and queuing scheme in real time to enhance performance. They can customize the system to issue warnings that are automatically triggered as soon as a specified threshold is reached, i.e. accomplish the monitoring function. All these data can be itemized, aggregated, arranged into a daily, weekly or monthly format, and published in the form of reports by the built-in supervisor, thereby by fulfilling the reporting function. I.8) - Internet and Intranet In spite of the enthusiasm and appeal the Internet generates among users, there is no guarantee of privacy. Each transaction is recorded in a register on the company's Intranet server - that indeed is the whole purpose of the Proxy Server. Sessions can be traced back to the user, usually without the latter knowing, and even the particular services consulted and the detail of the pages downloaded can be ascertained. The underlying risk is that these registers might be used to discipline a person, on the grounds that the Internet sessions were unrelated to the person's professional activity. Some cases of this type have been reported in businesses that have these resources. Clearly, all these technologies affect the traditional employment relationship and entail risks for personal freedoms at the workplace. Four considerations need to be mentioned in this respect: Computerized workplace surveillance systems give the impression they are objective and infallible because they are performed by a computer. Machine records are seen as more reliable than the employee's good faith. However, it is quite obvious that these systems are incapable of