South Africa employee monitoring laws - WorkTime

April 10, 2023

10 min read

23 most asked questions on South Africa employee monitoring laws

1. Is employee monitoring legal in South Africa?

Yes. Employee monitoring in South Africa is completely legal under state law but regulated by various laws. Some types of monitoring can only be used with a valid business reason.

2. Is it legal to monitor the company’s computers?

Yes. According to the law, the tool or device that the employer gave to the employee is the property of the employer, so they can fully track any actions performed on this device, but the employer must keep all the tracked data confidential.

3. Is it legal to monitor internet and social media activities?

Yes. Tracking of Internet use and especially monitoring of social media is regulated by the POPIA Act, which allows employers to intercept communications, but requires them to keep the employee's personal information secure and confidential. POPIA also recommends that employers explain to employees what monitoring is used for, and use it if necessary, but not always.

4. Is it legal to monitor screen contents and keystrokes?

Yes. Screen monitoring is allowed in South Africa and is regulated by the POPIA law, which requires employers to obtain employee consent for such monitoring. Keystroke loggers are also allowed and regulated by the same law, which requires employers to respect employee confidentiality.

Keystroke counters are not subject to any prohibitions because they do not pose a risk to employee privacy. For example, the WorkTime keystroke counter does not intercept text, which is why it is in demand among South African companies as an alternative to keyloggers.

5. Is it legal to monitor email content?

Yes. Employment contracts generally contain provisions regarding email monitoring, according to the source, in South Africa employees should have no expectation of privacy when sending or receiving emails. And that employees should use email only for bona fide business purposes.

6. Is it legal to monitor or record phone conversations?

Yes. The employer can record and monitor phone calls, but only with the employee's consent and if necessary, which must be proven before South African law. It is illegal in South Africa to record phone calls without a good reason.

7. Is it legal to use video monitoring systems in the workplace?

Yes. The POPIA Act, which regulates the use of cameras in the workplace, guarantees the safety of the employee regarding the collection, storage and use of video recordings from video surveillance cameras. In addition, the employer is obliged to obtain the employee's consent for the installation of surveillance cameras in the workplace, as well as for webcams built into work devices. Employers are obliged to provide employees with access to the collected video recordings.

8. Is it legal to monitor private messages and email content?

Yes. It is generally illegal in South Africa to intercept and store other people's communications without their consent and without good reason before the law. Interception of personal communications is regulated by the RICA law, including emails, messenger conversations, etc. Under RICA, it is illegal to intercept or monitor another person's communications without a lawful interception order or court order.

9. Is it legal to monitor employees’ personal devices?

Yes. However, the employee must be informed of the purpose of the monitoring, and the employer must obtain the employee's consent to do so.
But there are exceptions when the employer can monitor personal devices without the consent of employees, for example when there is a threat to the safety of the employer, or when there is a justifiable reason that may threaten the confidentiality of the company or the employer.

Likewise, if non-invasive monitoring is used, then it does not require legal authorization, just a verbal agreement between the employee and the employer. One example of non-invasive monitoring is WorkTime.

10. Is it legal to monitor employees’ personal computers?

Yes. It's legal in South Africa. Sometimes an employer does not even need the employee's consent to monitor a personal computer if it is used for work purposes. However, monitoring without consent is severely limited and should not violate employee privacy.

11. Is it required to inform employees of the monitoring?

No. The employer is required to inform employees only when invasive tools are used, for example: - Keylogger - Personal email monitoring - Recording from a personal device - Telephone call interception - Using the Internet on a personal device If the employer uses non-invasive features that do not threaten the security and privacy of the employee's data, then the employer is not required to inform the employee.

12. Are there laws in South Africa that protect employee privacy in the workplace?

Yes, employee privacy in South Africa is protected by the country's constitution, as well as a bundle of laws. For example:
RICA - controls the interception and retention of personal communications, letters, etc. Under this law, personal communications cannot be read by anyone without good reason and without the consent of the individual.
POPIA - regulates the collection, storage, and use of personal information. This law obliges employers to collect and process personal information only lawfully and with the consent of the employee.

In South Africa, there are two main governing electronic monitoring laws RICA and POPIA

13. Is it legal to monitor employees during breaks?

Yes. Monitoring an employee during breaks can only be done with a good reason, and there may not be many such reasons. The employer must have a legitimate reason for the monitoring and must inform employees about the monitoring and the reason for it.
If monitoring is done without a legitimate reason or without informing employees, it may be considered a violation of their right to confidentiality.

14. What types of employee monitoring are allowed in South Africa?

In South Africa, almost any type of employee monitoring, both invasive and non-invasive, is allowed. However, there is a nuance: invasive monitoring is only allowed if there is a good reason, and the need for such monitoring must be proven before the law, as well as obtaining the employee's consent. Some monitoring instruments are particularly difficult to obtain legal authorization for, such as: - Keylogger on the employee's personal device - GPS location monitoring - Wiretapping of phone calls - Tracking and intercepting private messages

Non-invasive WorkTime monitoring does not have any legal impediments in South Africa because it does not pose a threat to the confidentiality of employee information.

15. Can an employer track an employee's location using GPS?

Yes. As was stated above, such tools, and in particular GPS monitoring, require a special reason that must be proven. Since it is an invasive tool that violates the privacy of the employee, simply using such a tool is not allowed. Moreover, without the employee's consent, it may result in appropriate penalties for the employer.

16. Can an employer monitor an employee's computer activity?

Yes. The employer has the right to monitor computer activity, but the list of possibilities depends on several factors. For example, if the computer belongs to the company, the employer has the right to use keylogging, view internet traffic, and monitor email and messages. However, if the employee uses a personal device, the employer must obtain the employee's consent to monitor computer activity.

17. What information can an employer collect through employee monitoring?

An employer can collect various kinds of information about an employee through monitoring, such as internet usage, computer activity tracking, application activity, or keystroke logging. However, the employer must store and use the information as securely as possible and only use it for business purposes.

18. Do employees need to be notified about monitoring activities?

Yes. If non-invasive instruments are used, the employer may not notify employees about the monitoring. However, if invasive instruments are used, the employer must notify employees beforehand, explain why it is being done, and how the information will be used. However, the details regarding this issue are usually regulated in the employment contract or agreed upon between the employees and the employer.

19. Can an employee refuse to be monitored?

Yes. Generally, employees can opt-out of monitoring, but it may conflict with company policy, and the employee will have three choices: quit the company, agree to the monitoring, or challenge the use of monitoring.
If the monitoring is reasonable, used for a legitimate purpose, and with a clear need, it will be challenging for the employee to challenge or refuse the monitoring.

20. Can an employer use surveillance cameras in the workplace?

Yes. The employer can install cameras in the workplace, but they must agree with the employees and explain the need for a camera in the workplace.
Installing a surveillance camera in a remote workplace is a more complicated matter, and it will be necessary to obtain written consent from the employee as well as approval from the authorities to install the camera

21. Can employees access their own monitoring data?

Yes. As a rule, employees are required to have access to the information collected by monitoring concerning the employee, but the employer may withhold some information if it is classified.

With WorkTime employers can allow employees to access the collected monitoring data.

22. Can an employee request that monitoring data be deleted?

Yes. An employee may request that their employer deletes certain information about themselves, but the employer may deny the request if the information is needed for business purposes or if it needs to be kept due to certain company policies.

23. How can an employee report a violation of employee monitoring laws?

The employee can contact their employer's human resources department directly, or if they do not trust the company, they can contact the appropriate state labor agency. The employee can also seek help from a lawyer, who can assist them with certain issues.

The bottom line

South Africa's legal system is quite ambiguous when it comes to balancing workplace monitoring and employee privacy. Nevertheless, in terms of the law, monitoring in South Africa is very transparent. Employers must almost always notify employees when monitoring takes place, as well as obtain consent for the use of certain tools.

Disclaimer

The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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