I’ll Be Watching You: Is Employee Monitoring Even Legal?

Every innovation in the business world has two sides to the story, and employee monitoring could hardly be an exception.

You could be managing an organization that doesn’t want to be ignorant of the hows and whys of your team's productivity. Or, you might be concerned about your privacy and autonomy as an employee, which brings us to the question: are you familiar with the employee monitoring laws?

Employee monitoring systems were both simple and limited before sophisticated technology took over. From attendance registers and punch machines to surveillance cameras, the practice evolved through every advancement with benefits and nuances alike. 

With digitalization and changing workplace environments, the concept has been revolutionized in many ways. Remote and hybrid jobs in the post-covid era necessitated more robust project management systems to keep track of diverse teams and employees.

In a modern workplace, keeping a digital record of all processes for an efficient business management strategy has become essential. If you can’t trace how your assets and resources are utilized, you cannot plan how to allocate them for future projects. Growth becomes stagnant.

Let's further narrow down our question: what kind of employee monitoring is legally and ethically justified?

In most organizations, monitoring employees involves various time-tracking and surveillance techniques to learn about their whereabouts and activities. Managers are responsible to account for employee hours and productivity to boost output.

The fundamental goal is to stop inappropriate behavior like time theft before it triggers significant losses.

Productivity tracking is generally believed to increase a worker's productivity by reducing errors while improving output quality. Done right, it can help employers identify the strengths and weaknesses of their workforce.

Before implementing multiple tools and strategies, however, a pragmatic approach would be to devise an employee monitoring policy that aligns with your organizational values and the state's employee monitoring laws. 

TL;DR:

• Employee monitoring laws entail the systematic tracking and observation of employees' online and offline working behavior.
• It aids businesses in identifying and preventing illegal actions like insider trading, data breaches, and intellectual property theft.
• Monitoring tools help preserve data security since they can be used to spot and stop possible cyber threats.
• May assist in identifying and resolving problems such as time theft, workplace harassment, discrimination, and unethical conduct.
• Network and computer monitoring and video surveillance are commonly used for tracking employees, but they often lead to privacy invasion and micromanagement.
• Since employee monitoring laws are quite permissive, business owners must address ethical considerations in developing their employee monitoring policies.

Employee Monitoring Laws in the United States 

In the US, most federal and state regulations permit companies to keep an eye on almost anything that passes through company-owned devices and across their network, especially where there is a valid business purpose.

Employers can monitor keystrokes, emails, screen content, computers, active/idle time, and more. Nevertheless, laws are in place to control the limit to which employees can be put under surveillance.

Suspicion about informed consent has often been raised. Employers may integrate monitoring into an employee's workflow without obtaining the employee's permission. Some states, however, continue to demand that businesses give notice and secure employee consent.

State Laws Related to Employee Monitoring

In New York, companies are required by the Civil Rights Law to provide written notice to employees regarding potential monitoring of phone, email, or internet communications. This notice can be included in an employee handbook for new hires to review.

However, using personal devices at work, especially from home or outside New York, may raise questions about employee rights as the state's privacy protections may not cover them.

In Connecticut, the regulations do allow some exceptions for employers. Business owners can monitor employees without consent if they substantially justify a threat to the workplace environment.

Delaware laws require employers to provide electronic notice to employees before monitoring their phone, internet, and email activities. It must be in writing or electronic form, and employees must acknowledge their recognition of the notice.

California employers are allowed to observe employee activity on the job site in a similar way. However, employees still have privacy rights protected by the California Consumer Privacy Act (CCPA), which grants consumers the right to protect their privacy.

CCPA is strengthened by the California Privacy Rights Act (CPRA), which considers employees and freelancers as consumers, giving them the right to know who collects their data and granting them more control over their personal information. 

Surveillance practices may be considered spying in these four states if an employer monitors employees without a formal agreement. Since privacy regulations exist, some extremely intrusive monitoring procedures need the employee's written consent. The employee may file a lawsuit for invasion of privacy if the due procedures are not followed.

To comply with employee surveillance laws, policies and a pre-defined code of conduct must be set by every firm in these states. It is advised that all monitoring-related workplace policies:

• Be precisely described and well-documented
• Clearly state how and what will be under observation
• Impose a written acknowledgment by workers
• Explain that using company property reserves the expectation of privacy
• Make it clear that information will only be gathered that is relevant to work performance
• Limit the disclosure of personal information to outside parties

However, under federal laws and other states, activities performed on an employer's equipment are not protected as private. Employers might not be required to give notice before implementing employee monitoring. 

Monitoring Employee Computer Use 

Monitoring employee computer use is legal during and after work hours as the employer is entitled to monitor systems they own. As per ECPA, if the employer provides the computer, it remains the corporate property, and as a result, the employer is generally permitted to observe all the activities the employee engages in on it.

It includes but is not limited to downloaded files, internet consumption, and active and idle time. The use of corporate gadgets away from the office can also be watched.

Even outside of regular work hours, the employer can monitor any company-owned device, e.g., computers, with few restrictions. For instance, unless expressly agreed to in the employment contract between the employee and the employer, the employer must not monitor a device if an employee uses it for personal correspondence outside business hours.

How Employers Can Balance Their Interests With Employees' Privacy Rights

When deploying employee monitoring laws, balancing management interests and employee privacy rights is critical. Here’s how employers can achieve this:

• Employers should reassess and regularly evaluate the necessity and efficacy of their monitoring measures. The impact on employee privacy must not be trivialized. It is critical to assess whether the advantages outweigh any potential risks.
• Employers should create regulations about employee monitoring that are straightforward and explicit. These policies should specify the goals, parameters, and procedures for monitoring as well as any statutory or regulatory requirements.
• Employers should only conduct monitoring that is necessary and reasonable for business goals. For instance, they can concentrate on watching over work-related engagements and activities while maintaining employees' off-work privacy.
• Employers should anonymize the data wherever possible to safeguard personal information. The emphasis can be shifted from tracking individual behaviors to analyzing trends and patterns by not receiving unrelated information.

Methods of Monitoring Employees in the Workplace

Employee monitoring is carried out by installing tools and devices that usually record all employee activity through multiple channels:

1.  Computer and Network Monitoring

It entails keeping tabs on employees’ computer usage, including the websites visited, keystrokes, screenshots, and files accessed. Businesses claim that it enables them to monitor the use of company resources and spot unauthorized activity and potential cyber security threats.

2. Video surveillance

CCTV and webcams may be deployed to monitor employee activity visually. Security uses for video surveillance include preventing theft, monitoring access to sensitive places, and ensuring that standard procedures are followed. In areas with a legitimate expectation of privacy, such as restrooms or work from home, caution should be exercised to maintain employee privacy.

3. Social Media Monitoring

Most employers monitor their staff members' social media activity to handle any conduct that might hinder the organization's objectives. Employees or job applicants are asked for access to their personal social media accounts, raising debate about the limits of company rights in safeguarding themselves from liability related to employee conduct.

4. Monitoring through Phone Calls

Employers may listen in on their employees' phone calls for quality control, employee training, or to verify compliance with industry rules. Typically, this monitoring is restricted to calls placed on business-owned phones or received during working hours. 

5. Location Tracking

Companies track employees using GPS by equipping them with GPS-enabled devices such as smartphones or dedicated tracking devices. These devices use GPS technology to determine the employee's location in real-time. From an employee privacy perspective, this type of monitoring can feel invasive and raise questions about personal space and autonomy.

While permitted by law, some of these systems could be invasive, disregarding employee privacy and breaching employees' trust in their organization. It is not uncommon for business owners and managers to start micromanaging their workforce to the point of creating a toxic workplace.

According to a survey, 78% of employers use real-time surveillance software that captures all employee activity. The proxy measures companies use to spy on their employees may include screenshots, keystroke logging, and mouse trackers. 

Legal Aspects of Monitoring Employees in the Workplace

Considering the legal aspects of monitoring through workplace surveillance laws, privacy rights are one important consideration. Laws protecting employees' privacy within and outside the workplace vary according to particular jurisdictions. Employers must be aware of these rules and ensure their monitoring procedures are compliant.

Employers must adequately explain their monitoring procedures' intent, objectives, and parameters to employees.

Laws governing data protection must also be strictly complied with. Businesses are responsible for handling and storing monitored data safely and ensuring that it is only used for business purposes. Compromising these safeguards may result in penalties such as fines and possible legal action.

How Employers Can Balance Their Interests With the Privacy Rights of Employees

Employers face the challenge of striking a balance between their interests and the privacy rights of their employees. Organizations that value their employees adopt a thoughtful and accommodating approach to achieve this delicate equilibrium.

A clear and concise policy should be implemented, ensuring that employees are informed and have given their consent. Techniques applied for employee monitoring should be focused and proportional to avoid micromanagement.

Employee Monitoring Policy

An employee monitoring policy outlines the objectives, scope, methods, and legal considerations involved in monitoring employees in the workplace. It addresses privacy concerns, adheres to legal and regulatory standards, and ensures monitoring practices are carried out fairly and consistently. Here are a few things to keep in mind:

• In the case of remote work, a comprehensive employee monitoring policy should include clear guidelines on the actions or behaviors subject to monitoring, such as location tracking or device monitoring. 
• It should also address data collection, storage, and retention practices to comply with data protection legislation.
• The policy should explicitly state any restrictions on the personal use of corporate resources and outline employee rights and obligations. Penalties for policy violations and procedures for handling employee complaints should be clearly defined.
• Regular review and updates to the policy are necessary to accommodate changes in legislation, technology, or organizational requirements.

How to Implement an Employee Monitoring Policy in the Workplace

It takes careful planning to implement an employee monitoring policy. First and foremost:

• Companies must ensure all staff members understand the policy's objectives and repercussions.
• Supervisors and managers carrying out the policy should receive adequate training.
• It is critical to gain employees' informed permission, confirming their comprehension of an agreement with the policy.
• Research must be conducted on the effectiveness, pros, and cons of using different monitoring software.
• Routine monitoring audits and compliance checks should be carried out to ensure adherence to the policy and swiftly address any issues or violations.
• Employee concerns must be addressed by soliciting feedback and establishing effective communication channels.

For the policy to remain effective, it must be adaptable enough to accommodate organizational, technological, or legal developments as well as employee concerns.

Employee Monitoring Ethics

Invasive or underhand employee monitoring tactics are against the code of ethics for dealing with human resources and undermine the organization's success and growth.

Keystroke monitoring, location tracking, and screenshotting violate privacy and create an environment of mistrust. There is software that offers employee surveillance in stealth mode, which is an infringement upon employees' privacy right.

There is also a risk of exploitation or misuse of monitoring data, leading to discrimination, harassment, or breaches of confidentiality.

Prioritizing transparency, open communication, and employee involvement in monitoring procedures helps mitigate potential adverse effects on morale and job satisfaction. Organizations that treat employees with respect and dignity by upholding ethical standards gain employee engagement, loyalty, and productivity. 

Conclusion

In the ever-evolving digital landscape, employee monitoring will continue to be debated. While ethical concerns regarding surveillance tactics are valid, it cannot be argued that productivity tracking is essential for effective resource management.

Employee monitoring laws help businesses balance monitoring employees' activities and respecting their privacy. However, more than simply adhering to legal requirements is required, as they can be excessively permissive from the employee’s perspective.

Open communication and employee involvement in monitoring procedures are essential for maintaining a positive work environment and maximizing employee engagement. The key is to shift the focus from employee surveillance to employee productivity.

To achieve that, employers must prioritize ethical measures to manage employee productivity, such as non-invasive time-tracking. 

Non-invasive time-tracking software like timegram provides businesses with accurate records of employee working hours, enabling them to comply with labor laws, ensure fair compensation, and demonstrate compliance during audits.

It is a privacy-first time-tracking and project management software that strictly follows a non-invasive policy. It promotes a culture of transparency and accountability by giving your team the autonomy to log the most productive hours and skip non-work-related activities.

Read more about our key features to know how you can take a fresh start with an ethical approach to employee monitoring. You can sign up today for free!

FAQs

How can I tell if I am being monitored at work?

If you notice unknown programs running in the background, high data transfers, random pop-ups, or a slowdown in performance, it could indicate that your computer activity is being tracked. These signs suggest the presence of monitoring software or tools monitoring your web usage, capturing keystrokes, or tracking your online behavior. It's essential to investigate further if you observe these signs and consider reviewing your company's policies, speaking with HR, or seeking legal advice to understand your rights and the extent of monitoring in your workplace.

Can you monitor employees without consent?

Unfortunately, Yes. Only four U.S. states, i.e., Connecticut, Delaware, Texas, and New York, require prior notice to employees about the use of monitoring software. Under federal laws and in other states, monitoring employees without consent is entirely legal.