The headline comes from John Morgan of the well-known law firm Morgan & Morgan. In an interview, the lawyer described monitoring measures that include cameras, productivity metrics, and keystroke tracking. After saying where he'd put the cameras, he concluded that people don't want to work from home, "they just don't want to work."
It may have been intended partly as a joke, but the message was very real: we are going to monitor our employees intensely. At least a few Morgan & Morgan employees appear to have found it unamusing as he said 23 people at the firm subsequently resigned because of it in the first week alone.
So where is the legal line, and when does workplace monitoring become a privacy violation? Here is what you need to know.
How Much Can My Employer Watch Me While I Work?
Let’s start with the basics. Generally speaking, it is legal for your employer to monitor your work.
Federal law can affect some forms of workplace monitoring. The Electronic Communications Privacy Act (ECPA) includes rules that may apply when an employer intercepts or accesses electronic communications through company systems.
This can apply whether you are in the office or at home, even if you are using your personal computer. However, your employer generally can't freely access or surveil your entire personal device or unrelated personal accounts.
Your employer may be able to access your activity through certain company systems, such as:
- Company email
- A corporate VPN
- Workplace Slack
- Microsoft 365 through your employer’s domain
- Any monitoring software your employer has installed
“Bossware” is becoming increasingly common in remote and hybrid workplaces. This is software that may be used to track:
- Active working time
- App usage
- Keyboard and mouse activity
- Screenshots
- Access to internal systems
What an employer may monitor usually depends on the system being used, the type of information collected, the employer’s policies and notices, any employee consent, and the law that applies where the employee works.
In general, employers have more authority to monitor employer-provided or employer-managed accounts, devices, networks, and applications than to access unrelated files or accounts on an employee’s personal device.
Employment Agreements and Monitoring
Many companies have internal policies explaining how they may monitor the use of:
- Work computers
- Company-issued phones
- Work email
- Internal company networks
- Internet connections provided by the employer
If you agreed to those terms, that consent will generally cover company systems regardless of who owns the hardware, although the specifics and state law matter.
State Law
As noted above, the federal ECPA includes exceptions that may allow employers to supervise certain activity carried out through company systems, accounts, or devices. And case law supports this. For example, a federal court found that an employer did not violate the ECPA when it reviewed work emails already stored on a company-managed server.
However, a small number of states require employers to give workers advance notice of certain types of monitoring. Those states include Connecticut, Delaware, New York, and Maine.
It is also important to note that if you work remotely, the law that generally applies is the law of the state where you are physically working, not necessarily the state where your employer is headquartered.
Red Flags
Although the law gives employers fairly broad authority to monitor work-related activity, certain circumstances are clear red flags. These include:
- Monitoring without notice when state law requires employee notification
- Accessing personal accounts that are unrelated to work
- Surveillance outside working hours
- Tracking personal devices
- Excessively intrusive monitoring inside the home
Depending on the nature of your concern and how serious the situation is, it may be worth considering whether to speak with an employment lawyer or contact your workplace’s Human Resources department first.
Go to HR First If:
- You only want to understand the company’s monitoring policy, including what it tracks and what tools it uses.
- You do not believe anything improper has happened and simply want clarity before using your personal equipment for work.
- You want the company to provide, in writing, which systems or accounts are subject to monitoring.
- You have a reasonably good relationship with your employer and trust that it will give you honest information.
HR is faster, free, and can often resolve straightforward questions without requiring further action.
Consider Speaking With a Lawyer First If:
- You suspect your employer has already monitored something it should not have, such as your personal account, your camera, or activity outside working hours.
- You believe your employer violated a specific state law, such as failing to provide the written notice required in Connecticut, Delaware, New York, or Maine.
- You have already faced a workplace consequence, such as a warning, discipline, or termination, based on something your employer monitored.
- You do not trust HR to act in your best interest. Remember, HR represents the company, not you. Anything you disclose to HR could potentially be used against you in future litigation.
- The situation involves something especially sensitive, such as audio recording without consent or monitoring outside of work.
Regardless of the blunt way John Morgan described employee surveillance, his comments reflect how permissive the law can be when it comes to workplace monitoring. At the very least, employees can rest assured no employer can actually stick a camera where Jon Morgan suggested.
