Can an Employer Legally Monitor Employees?

Navigating state and federal laws while monitoring employees is tricky. In this article, we’ll explain the laws at play and provide some basic tips for small business owners. While understanding what’s involved is a boon, it’s still a good idea to consult an employment law attorney in your state for help with legal compliance.

Key Federal and State Laws

Under federal law, employees have limited but important privacy rights at work. The primary statute governing surveillance is the Electronic Communications Privacy Act of 1986 (ECPA). The ECPA generally prohibits the intentional interception of electronic communications, but also includes key exceptions that allow employers to monitor under specific circumstances, such as for a legitimate business purpose or with employee consent.

State laws often provide greater privacy protections. For example, while federal law only requires one party to consent to a recorded phone call, many states require all parties to consent.

Key all-party consent states include:

• California
• Delaware
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington

In addition, the National Labor Relations Act (NLRA) protects employees’ rights to discuss the terms and conditions of their employment. Monitoring policies cannot interfere with or punish employees for this “protected concerted activity.”

Types of Employee Monitoring

Employee tracking and monitoring tools can take many different forms, and the rules that apply depend on the setting. Below are a few common examples of employee monitoring systems and tools.

Employee Privacy in Physical Spaces

Employees have a reasonable expectation of privacy in certain areas, such as bathrooms, locker rooms, and changing facilities. Employers may not place cameras or recording devices in these areas. While employers can search these areas if they have reasonable grounds to do so, they must also provide a secure place for employees to store private belongings.

Phone Call Monitoring

The ECPA and state laws limit the monitoring and recording of phone calls. Because of the consent requirements mentioned above, businesses commonly announce that they are recording calls for quality assurance purposes.

In general, employers can’t monitor purely personal phone calls, even on company equipment. It’s often easiest to allow workers to make personal calls on their own cell phones and restrict the times and places for those calls.

Computer and Internet Use

Employers can monitor computer and internet use on company-owned equipment. This monitoring is often justified under the ECPA’s “business purpose” or “consent” exceptions.

Installing employee monitoring software carries significant legal risk, and employers must ensure their methods do not unlawfully capture protected personal information. Let’s take a closer look at certain types of monitoring and how to approach them:

• Site and usage tracking: Employers generally may monitor workers’ internet usage and install software to block access to certain sites, such as social media platforms. This is a reasonable measure to protect company networks from hackers, malware, and spyware.
• Email monitoring: Most courts have held that email in employer-provided accounts is company property. While courts consider email on company systems to be employer property in general, reading emails without a legitimate, documented business purpose could be challenged as an invasion of privacy. The best practice is to treat employee email like other business correspondence and access it only when necessary.
• Keystroke logging: Keystroke logging apps (keyloggers) collect every keyboard and mouse click a user makes in real time. While some employers use this software to track employee productivity, it is legally risky because it can unintentionally capture an employee’s personal data, passwords, or financial information, which could lead to liability in a data breach.
• Time management tracking: Time-tracking software can help human resources monitor when employees are active at their computers. To ensure this software doesn’t block necessary websites, consult your team to understand which sites they use for research or work-related tasks during a typical day.
• Webcams: While it may not be explicitly illegal for an employer to remotely activate an employee’s webcam on a company laptop, some states may require notifying the employee that the company reserves this right. For practical and ethical reasons, arbitrarily activating a webcam without a clear, stated purpose is strongly discouraged and could harm employee trust.

Because privacy laws vary by state and even municipality, check legality with an employment law attorney before implementing any new monitoring systems or practices.

Off-Site and GPS Tracking

Employers can generally track company equipment, such as a delivery company placing GPS tracking devices in its vans. Because company laptops or desktops are the employer’s property, the employer may access them at any time. Tracking employees off duty or monitoring their personal devices raises significant legal and privacy concerns.

Best Practices For Employee Monitoring

In an era of remote work and high employee turnover, it’s understandable that employers want to ensure work is getting done. However, too much monitoring can erode employee morale and breed distrust. The best way to monitor employees legally and ethically is to be transparent.

• Have a clear, written policy: Your company policies should clearly state what is being monitored, why, and what the disciplinary consequences are for policy violations. This can eliminate “But I didn’t know!” claims.
• Have a reason for monitoring: Arbitrary intrusion is less legally defensible than monitoring based on a valid business concern. These can include protecting trade secrets or investigating a data breach.
• Consider the impact on morale: When considering tracking your employees, weigh the business need against the value of employees feeling trusted and secure. A culture of trust can be more valuable than any monitoring software.
• Be open to alternatives: Nobody likes to be spied on. Sometimes a quick daily check-in call or trusting your team is a better solution than investing in an expensive and intrusive monitoring system.
• Be realistic: Before reading emails and installing cameras, ask if you truly need to. The less necessary the monitoring, the more likely a court could find it to be an unreasonable invasion of privacy.
• Mark all surveillance devices: Any video surveillance devices should be clearly marked in accordance with state and local laws. Hidden devices used to monitor employees can land you in legal hot water.

It can be difficult to balance concern for your company with overstepping in employee monitoring. When in doubt, a legal expert’s take on your situation is often the best option.

Questions About Monitoring Employees? Speak to an Attorney

Understanding how to monitor your employees legally is essential to running your business. An experienced, local employment law attorney can review your current policy for compliance and help you update your employee handbook to protect your business and respect your employees’ rights.