Can employees be fired for using mouse jigglers?

The Covid pandemic sparked a surge of innovation in workplace technologies designed to support remote workers through lockdowns. But just as home-working saw the introduction of new tools to increase employee productivity, so too did it enable the use of devices to fool the very systems tracking that productivity.

One such tool, which soared in popularity during the pandemic, is the mouse jiggler – a desktop accessory that keeps your mouse cursor moving even when you’re away from your desk.

But purchases of these nifty devices may be set to plummet, following the news that more than a dozen Wells Fargo employees were fired after it was alleged they were simulating computer activity during working hours.

Disclosures filed with the Financial Industry Regulatory Authority and reported by Bloomberg, reveal that several staffers in the bank’s wealth and investment management unit were “discharged after review of allegations involving simulation of keyboard activity creating the impression of active work”.

Although it is unclear how the individuals were caught or whether they were working from home at the time of the alleged misconduct (Wells Fargo did not respond to requests for comment), the revelation has led employers to voice concerns about the productivity levels of remote workers. There has been a sustained push from companies, particularly in the financial services industry, to get staff back to the office. While some firms are enforcing a return to full-time in-office working, Wells Fargo maintains a hybrid-working model.

The urge to understand what workers are doing while away from the office has led to an upsurge in the use of remote monitoring tools by businesses. The use of surveillance tools, such as video monitoring, keystroke logging and mouse tracking, has markedly increased since 2021. The majority of UK workers (80.3%) surveyed by Raconteur and Attest report feeling monitored by their employers to a moderate or high degree. 

The response from some staff has been to find ways to avoid detection, by using private browsers, secure messaging apps and tools such as mouse jigglers. Some of the most popular mouse jigglers on Amazon are advertised as “undetectable”, have thousands of reviews and are available for less than £10.

Businesses crack down on productivity fakers

So far, the use of these surveillance-dodging tools has gone broadly unpunished. But the response of Wells Fargo could prompt more businesses to crack down on these deceptive tactics. 

According to Jo Mackie, partner and director of employment at Burlingtons Legal LLP, using such tools during working hours amounts to dishonesty and can therefore be regarded as a sackable offence. 

“Dishonesty is a really big deal,” she says. “It breaches the implied duty of trust and confidence between employer and employee and for that there is the right to dismiss someone on grounds of gross misconduct.”

However, Trevor Bettany, employment Partner at law firm Charles Russell Speechlys, says there are certain circumstances where the decision to dismiss may not be so clear cut. “An employee using such a device to mislead the employer may nevertheless have been working very hard – perhaps thinking rather than typing, or working different or additional hours,” he points out.

Bettany compares the use of mouse jigglers to placing tape over a monitoring camera. “Disabling the camera does not mean that the employee is not working; however, doing so may make it easier for the employer to reasonably infer that they were not working properly,” he adds.

Employees who are dismissed for such offences therefore may have grounds to claim unfair dismissal. But whether dismissal falls within the range of reasonable responses for an employer has yet to be determined in an employment tribunal.

While the Wells Fargo case may not set a precedent, it does “shine a light on this as a potential issue”, according to Gillian McAteer, director of employment law at Citation. “There are a lot of employers out there who were completely unaware that this could be happening and it will feed into their fears that employees may be faking productivity within their business,” she adds.

McAteer advises that businesses who wish to respond by increasing their employee surveillance must do so carefully. Organisations should inform their employees of the surveillance methods they’re using and make clear that attempts to fake productivity are not permitted and would be viewed as gross misconduct.

Signs of disengagement

There is a possibility that such measures may only lead to greater distrust between employers and employees. “Stringent surveillance measures are more likely to be used in organisations where there’s a lack of trust and an absence of effective objective-setting,” says Bar Huberman, HR strategy and practice manager at solutions provider Brightmine.

Terez Rijkenberg, chief people ­offi­cer at business transformation consultancy Socium10X, agrees, adding that evidence of employees using mouse jigglers or faking keyboard strikes most likely points to “deeper issues” within an organisation.

Employees who feel disengaged, burnt out or are facing unrealistic expectations from their managers are most likely to resort to faking their productivity. Rijkenberg suggests leaders “explore why employees feel compelled to use these tools and address those root causes.”

Companies where mouse jigglers are an effective way to simulate productive work likely focus on presence over performance. Instead, organisations need to foster a culture where “productivity is measured by outcomes and employees feel genuinely valued”, she adds.
The Wells Fargo episode highlights a growing concern among business leaders that remote workers are slacking off. As companies try to clamp down on attempts to feign productivity, determined shirkers are finding ever-more inventive ways to evade detection. Increasing surveillance is one way to catch the mouse movers and shakers, but finding ways to re-engage these refuseniks may be the better long-term solution.