Recently,Wells Fargo sacked a significant number of workers for ‘mouse jiggling’.
A “mouse jiggler”, also known as a ‘mouse mover’, is a device or piece of software designed to keep a desktop or laptop computer active. It automatically moves the cursor every few seconds to stop the device from showing idle or going into inactive mode.
The main legitimate purpose of the device is to prevent the device from going into sleep mode during long file uploads or downloads or other time-consuming tasks that don’t require active attention.
However more inventive employees have seen the potential of the device to avoid inactivity surveillance alerts when away from the computer for unapproved breaks and to record inaccurate time records.
Whilst these devices are not illegal per se, they do raise issues of trust and good faith in employment relationship and privacy settings.
Transparency and honesty are important ingredients of good faith and the prerequisite trust and confidence that an employer can expect in the relationship. Under section 12 of the Fair Trading Act 1986 and section 4(1)(b) of the Employment Relations Act 2000, a party to an employment relationship must not mislead or deceive.
Installing unauthorized apps or devices on a company PC may well be a breach of the employment obligations; one striking at the heart of the employment relationship justifying as in the Wells Fargo situation dismissal.
If an employee uses mouse activity to disguise productivity this does raise issues or honesty and transparency.
Some mouse jigglers are software based and may collect data. Whilst most legitimate ones don’t, there is the possibility that the unauthorised could potentially capture keystroke or screen content.
Mouse jigglers could introduce security risks by exploiting vulnerability or gaining unauthoirised access to the systems.
On the other hand, working from home has seen the rise of workplace surveillance by employers.
Mouse jiggling is the employee response to that surveillance. Using keystroke and screen monitoring devices whilst legitimate under certain circumstances requires a balance between productivity, privacy and employee rights.
Installing cameras and surveillance is generally legitimate in NZ. However, there are limits to how surveillance can be used and privacy remains paramount.
There is a fine line between monitoring and invasion of privacy.
The right to monitor must be within reasonable limits and for proper purpose, such as the need to protect data or ensure employees are at work when they say they are. However full disclosure of what devices are being used to monitor what is being monitored and how is required.
Using the data collected for other than identified legitimate purposes would not be justified.
Surveillances would need to focus on work-related activities only. Surveillance could not breach good faith requirements nor be destructive of the obligations to engage constructively, nor be deceptive or mislead.
Employers should consider the reason for the surveillance and whether a high trust model is, or more conducive to productivity, respect and trust (essential ingredients in an employment relationship) than a low trust one promoted by surveillance devices.
Further with the rapid ascension of AI how will employers now monitor whether the work done is that of their employee and does it matter. Food for thought as we work our way through ever-increasing complex technologically challenging times and are our current laws fit for purpose.
