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Web camera on while working

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1. Summary

  • Work from home employees (WFH) are subject to Company policies and regulations even if they are doing their work at home.
  • The employer may issue a policy requiring WFH employees to turn on their web camera while working.
  • Employee’s right to privacy is not violated with such policy.
  • Employers are under obligation to delete the recording when there is no longer a legitimate reason for storing.

2. Legal Basis

  • Management prerogative
  • R.A. 11165 (Telecommuting Law)
  • DOLE Department Order No. 202, Series of 2019 (IRR for Telecommuting Law)
  • R.A. 10173 (Data Privacy Act)
  • Implementing Rules and Regulations of the Data Privacy Act

3. Concept / Question

Question: Is it valid for an employer to require a WFH employee to turn on their web camera?

Yes, provided it is a valid exercise of management prerogative by the employer.

4. Management prerogative to require web camera on for WFH employees

WFH employees are subject to Company policies and regulations even if they are doing their work at home.

Company policies and regulations are part of the employer’s inherent right called management prerogative.

To recall, management prerogative is the inherent right of the employer to regulate all aspects of employment, from hiring to firing, from manner of doing work to disciplinary action, and everything in between.

Policies on work from home is part of management prerogative. Accordingly, the employer may issue a policy requiring WFH employees to turn on their web camera while working.

Of course, the exercise of management prerogative is subject to two (2) limitations: (a) good faith, and (b) with due regard to the rights of the employees.

a. Good faith

Good faith is established by a valid justification for any policies issued or required by the employer.

For a policy requiring a web camera on for WFH employees, the valid justification may include monitoring employees to ensure they are doing work, protecting proprietary/confidential/sensitive information by making sure the employee is in a secure environment (i.e. nobody else can see what’s on his screen), or avoiding wasting of company resources for personal use. There might be other justifications unique to certain businesses, particularly if they are strictly regulated or handle confidential and/or sensitive personal information.

b. Employee’s right, particularly privacy

Is there a right of the employee that is violated?

Some WFH employees may argue that their right to privacy is violated with a policy that requires a web camera on during their work shift.

Before proceeding, it should be emphasized that the rights being discussed is that of an employee in the context of employment, not of a person in the context of human rights in relation to the Government.

In the context of employment, and in general, there is no reasonable expectation of privacy. Remember, if an employee would have been working in an office, he/she would have been subjected to CCTV recording his actions in the workplace. Evidently, this is a valid management prerogative with the justification being that the CCTV is for the safety, security, and protection of the people and properties in the workplace. In some cases, the CCTV monitors the employees if they are doing their work and if they are behaving accordingly.

Thus, turning on the webcam is no different from the justification behind CCTVs in the workplace.

As for the possibility of recording the home of the employees, it should be emphasized that this is not an insurmountable problem. The employee simply has to find a suitable location where the background will not reveal anything of the employee’s private life. For instance, employee may set up his workstation with a flat wall or curtains as background.

If the concern however of the employees is that their face may be recorded, it is equally unavailing. After all, if the employees were to report for work at the office, they are expected to be in proper grooming. Doing work from home is not an excuse not to be presentable.

5. Telecommuting Law and its IRR

Under the Telecommuting Law and its IRR, there is no specific provision applicable to the matter. Otherwise stated, nothing in the law nor the regulation prohibits the employer from having a policy requiring WFH employees to turn on their web camera while working.

If there was such a prohibition, then the employer’s management prerogative will be invalidated since such right cannot go against the law or regulations.

6. Privacy laws require deletion of recording

In compliance with the Data Privacy Act and its IRR, employers are under obligation to delete the recording when there is no longer a legitimate reason for storing. Such recording may be classified as personal information as a person’s face, name, and other possible identifiers may be part of the recording.

The duration will depend on whether there is still any legitimate use for the recording. For example, if the objective was to monitor attendance of WFH employees, it is reasonable to conclude that such objective is completed after say 60 days. The reason being is that the employee would have received his compensation for two months without any contest on his/her absences. If there was a contest on a particular day, then the recording for that specific day only should be retained.

Still, once the employee exits the company, any retained video recording should only be retained for a limited period of time if there is a legitimate reason or for purposes of compliance. If there is none, deletion should be done.

If no deletion is made and there is no legitimate reason for retaining the recording, current and former employees may have a cause of action against the employer should they be prejudiced or damaged as a result of any leakage or privacy violation.

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