New law giving Australian staff “the right to disconnect” – the order to refuse contact with the employer outside working hours (unless the refusal is unjustified) – comes into force this month.
These regulations are a response to growing awareness of the health and safety costs related to the stress and overwork related to constant connectivity. other countriesincluding France and Belgium, have also recognized such a right or are considering doing so.
But New Zealand is not. Its working time regulations are relatively primitive compared to more comprehensive regulation in other countries, although the minimum wage law limits working time to 40 hours per week, unless the parties agree otherwise.
New Zealand should consider the right of employees to disconnect. But this must transcend restrictions on when employers can actively contact employees. The government must also address the ability of employers to use newly developed technology to spy, track and record the whole lot employees do of their free time.
Constant surveillance is now a core feature of algorithmic management software, which collects data from work-at-home laptops, biometric scanners, worker smartphones, AI searches on social media, employee-driven vehicles, and even IoT-enabled worker badges.
These devices don’t stop recording when an worker leaves the workplace or finishes work at the end of the day.
The Harm of 24/7 Spying
Workers subjected to 24-hour surveillance cannot completely break away from their workplace. Tests showed that the perception of constant surveillance is bad for mental health and well-being. The abuse of this information by spying bosses, nosy coworkersbullies and tyrants undoubtedly harm employees.
Moreover, data collected from homes, smartphones, vehicles and worker biometrics will be became a commodity and resold to third-party data brokers.
These brokers are largely unregulated and operate outside New Zealand borders or control. This means there are few real restrictions on who could buy and use this information.
New Zealand lags behind in protecting staff
New Zealand law doesn’t protect employees from privacy invasions and employer demands.
Not only does the law barely limit working hours, but the protections provided by the Privacy Act against invasive data collection are more limited than is commonly believed. While other countries While New Zealand doesn’t specifically regulate privacy in the employment context, it doesn’t.
Instead, under the general principles of law, employers in New Zealand are permitted to collect personal information where vital for a “lawful purpose” related to the functions or activities of employees.
Employers wouldn’t have to be certain that employees know and expressly consent to the collection of their data. They only have to take “reasonable steps” to be certain that employees know why the data is being collected and who will receive it.
Information could also be used for purposes aside from those for which it was originally collected, provided the individual consents. Information may be disclosed to third parties under the same conditions.
Global standards for workers
All this lags behind emerging global standards for safeguarding worker privacy. The European Union’s General Data Protection Regulation (GDPR) doesn’t allow employers to depend on employees’ “consent” to supervisory practices. This framework recognizes the economic power that employers have over employees.
The EU is also I need to ban processing of certain varieties of personal data of “platform workers” (for instance Uber drivers), including a prohibition on collecting data when the employee is not working.
New South Wales and the Australian Capital Territory require lively notification of filming and audio recording when employees are working from home, and don’t allow passive, covert surveillance with out a court order. Portugal the law expressly prohibits constant contact by way of image or sound.
The United States has begun considering The Act to Stop Spying on Bosseswhich might prohibit employers from collecting data outside of working hours. And California introduced detailed provisions on employees’ rights regarding data relating to their workplace.
New Zealand’s weak penalties for privacy intrusions stand in stark contrast to those imposed by the French Data Protection Agency. Amazon France was was recently fined 32 million euros for violating the GDPR.
Opportunity is knocking on the door
The New Zealand Government also has quite a few other employment law reforms in the pipeline, including reforming occupational health and safety laws, reviewing access to personal grievances and changing the legal definition of “employee”.
However, the right to disconnect doesn’t appear to be a priority.
New Zealand can learn from other countries responding to rapidly changing technologies. When the time comes, the government should implement laws that give employees an actual right to disconnect and privacy outside of the workplace.
