There are many reasons people enjoy remote work. Saying goodbye to a brutal commute? Check. Not having to figure out what to wear? Check. Pets readily available for a quick break? Check. Nobody microwaving fish in the kitchen next to your cubicle? BIG check.
While working from home means you don’t have to worry about your manager glaring if you’re lingering a bit too long with your coworkers on a coffee break, it doesn’t mean that your employer isn’t monitoring your output. While privacy laws protect personal data and accounts, what remote employees do on company-owned devices, such as laptops, is generally subject to tracking and scrutiny via employee monitoring software.
Does an employer have the legal right to use tracking software on remote workers, or is it an invasion of privacy? In general, it’s legal for an employer to do so. Much depends on the details, which often focus on whether a work computer is being used and if the company has been transparent about its tracking policy. There’s no federal law that specifically outlaws remote employee monitoring, but legislation such as the Stored Communications Act (SCA) provides some privacy protections. State laws can also aid with employee privacy, but if you’re using a work device, chances are that your employer has the right to monitor every key you tap and every website you visit.
I Always Feel Like Somebody’s Watching Me
The coronavirus pandemic brought about an unprecedented change in how America worked. Due to office closures, many employees found themselves working remotely, often from home. For employers, determining whether their employees were hard at work instead of watching “The Price Is Right” was one of many headaches. Some turned to digital “productivity tools” that let an employer monitor an employee’s work hours, screen activity, and website usage on work-supplied laptops and personal computers.
As might be expected, this raised questions about employee rights and the expectation of privacy. Both the Computer Fraud and Abuse Act (CFAA) and the aforementioned SCA generally prohibit employers from accessing private accounts on personal devices without an employee’s consent.
However, it’s a different story if a work device is involved. The Electronic Communications Privacy Act of 1986 (ECPA) permits employers to monitor employee communications on employer-owned devices or systems using company software if they have either employee consent or a legitimate business reason. This includes work-related email accounts, messages, and online activity. But does that mean a company can check whether there’s too much “idle time” during your workday without violating your privacy?
Yet Again, RTFM
Surveillance tools for tracking remote worker activity can report on a range of variables. Some, like counting keystrokes or tracking mouse activity, can seem reasonable. Others, such as taking screenshots or activating the user’s webcam to verify they’re actually in front of the device when they say they are, may seem intrusive.
Companies with remote employees should have a well-explained policy in their employee handbook. Ideally, any protocols for monitoring remote work on employer-owned devices will be transparent in their operation, minimally intrusive, and allow latitude when productivity is at or above acceptable levels. In general, if you have a personal email account on a work device, your employer can’t access it unless it’s part of the employee handbook or you’ve given consent.
There are a few very large red flags to watch out for. Your employer should make sure you’re aware of any monitoring it’s conducting. Nondisclosed monitoring is unethical and may be illegal. The company should not cross any personal boundaries either, such as examining other devices on your home WiFi network or turning on your webcam. If you’re meeting your productivity goals, it’s difficult for an employer to justify intense policing of your productivity. When your work is up to snuff and on time, why should “idle time” need to be put under a microscope? If you encounter these issues or other similar concerns, speak with your company’s HR department.
Make It BYOD (Bring Your Own Device)
If you’re working remotely, your employer can likely monitor what you’re up to on a company device. So, how can you sidestep having your boss constantly looking over your digital shoulder? First and foremost, read your company’s employee handbook, as well as any employment contract you may have signed. Businesses that use tracking software should have a clearly defined policy for your review. If you’re meeting the requirements of your position but being nitpicked over five minutes of idle time, you may need to discuss the situation with your boss or speak with HR.
It’s also a good idea to be a little careful when using a company computer. In addition to key clicks, your employer can also track which websites you visit. If you want to visit an online casino, you’re probably better off using your own phone. Try to avoid using a work computer for online banking, personal emails, or other private information.
While it might not be an option for all remote workers, the chances of avoiding employer monitoring increase if you work on your own device. This isn’t foolproof, as your employer may require the use of company-owned software or an online portal. If you do choose to use your own device, make sure to take precautions to protect your privacy. Using a VPN is advisable if you’re logging in to a company workplace, and you should make sure to log out when you’re not actively working.
Take the time to check out your state’s employment laws as well. Many jurisdictions offer additional protections against overly intrusive monitoring. For example, California requires employers to notify workers before any monitoring can begin, while companies in Delaware and Connecticut must alert employees if they’re being monitored.
It’s off-putting to realize that your employer may be tracking every keystroke you make. While they do have some right to do so if there’s a business purpose involved, there are also lines they can’t cross. If they do, well, that’s what employment law attorneys are for.
Related Resources
- Workplace Privacy Law (FindLaw’s Employment Law)
- Monitoring Employees (FindLaw’s Employment Law and Human Resources)
- Is It Illegal To Track People With an App? (FindLaw’s Law and Daily Life)
