Monitoring Employees

When the COVID-19 emergency struck, many employees suddenly had to work from home. As the public health emergency subsided, workers and employers began to acknowledge that remote work did not affect productivity the way many had feared.

Even before the COVID-19 pandemic, there were questions about workplace monitoring. How much is too much before it invades an employee's right to privacy? In a world where some employees work a portion or all of their hours at home, what can employers do to ensure the job gets done without spying on their employees?

Employee Privacy Rights

Under federal law, employees have few rights to privacy while at work. Employees have the right to privacy in bathrooms, locker rooms, and changing facilities. They must have a place to secure their private belongings. Employers may search these areas if they have reasonable grounds for a search. They cannot place cameras or recording devices in these areas. Video surveillance devices should be marked in accordance with state laws.

When small-business owners consider tracking their employees, they should consider the effect on employee morale and company culture. You should weigh the need to watch employee behavior against the impact of Big Brother peering over your workers' shoulders.

Monitoring Phone Calls

The Electronic Communications Privacy Act of 1986 (ECPA) and later amendments limit the monitoring and recording of phone calls. State laws may require businesses to announce that they are recording the call for legal or quality assurance purposes. Eleven states require all parties to consent to the recording:

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

Employees may make personal calls without monitoring. Federal laws about personal calls existed before cellphones were common in the workplace. Now it is easiest to allow workers to make personal calls from their own phones and restrict the times and places they may make those calls.

Electronic Monitoring

The advent of the internet made things simultaneously easier and more difficult for companies. On the one hand, work became faster and less cumbersome. On the other, workers could spend that extra time playing online Solitaire or surfing their social media sites. Unrestricted internet use also opened company computers to internet hacking and malware.

Monitoring remote employees is another issue. Employers need a computer monitoring solution that tracks usage without limiting employee productivity and trust. Keeping track of employee performance and computer safety must balance with workplace culture.

As of 2023, no federal or state laws directly regulate an employer's monitoring of an employee's internet use in the workplace. Employers should be extremely cautious before installing employee monitoring systems in their workplace computers.

Site and Usage Tracking

Employers are generally allowed to monitor their workers' internet usage. They can install site blockers or restrict access to certain sites on company computers. This is reasonable given the risk of hackers, malware and spyware, and other potentially damaging content embedded in some sites.

Business owners may also follow employee activity on company-approved websites. Company sites may have multilayered access that requires passwords for certain areas or higher levels within the site. These types of sites allow admin-level users to track usage by lower-level employees.

Email Monitoring

Most courts have held that employee email in employer-provided accounts is company email unless the employer and employee agree otherwise. Company policies may allow an employer to designate employee email as private.

Employers should not read their employees' emails without reasonable justification. Best business practice is to treat email as any other mail and not read it unless the recipient says you may.

Keystroke Logging

The hot new monitoring tool on the market is keystroke logging. These apps collect every keyboard and mouse click a user makes in real time. Keystroke loggers, or keyloggers, were once virus programs used by hackers to steal passwords, credit card numbers, and other sensitive data. They are still used that way today.

Employers of remote workers also use keyloggers as employee monitoring software to ensure their workers are working. Tracking software can determine how many keystrokes an employee makes in a day. It can let the employer know if the number drops below a certain amount.

Keystroke logging is risky because the employer may unintentionally collect a worker's personal data or passwords and lose them in a data breach. The software may also conflict with other word processing programs, leading to errors in data entry.

Time Management Tracking

Keeping track of when employees are working and when they are away from their desks is essential whether your employees are remote or work in the office. Time-tracking software creates a system that lets human resources monitor which employees are working at their computers and which are surfing the web.

Time management software demands input from team members as well as administration. Your employees can tell you what sites they visit for research or work contacts during a typical workday. This will help ensure your employee monitoring solution does not cut your workers off from sites they need for job duties.

Off-Site Tracking

Once employees leave the building, keeping tabs on where they go and what they do becomes problematic. The courts have not weighed in on off-site employee tracking as much as employers might hope.

Employers can track company equipment. Delivery companies may place GPS tracking devices in delivery vans and track employees' routes. Company laptops or desktops are the employer's property, and the employer may access them anytime.

Webcams

Theoretically, employers may turn on remote webcams at any time and watch the user. It is not illegal, but some states may want the employer to notify the employee that they reserve the right to do so at any time, unannounced. For practical and ethical purposes, it is not a good idea for employers to switch on a webcam whenever they feel like it.

Legal and Ethical Employee Monitoring

In a time of remote work and high employee turnover, employers need to check on their workers and be sure everything is getting done. At the same time, too much monitoring creates a corrosive atmosphere of distrust among workers. They begin looking for creative ways to defeat the monitoring — or find another job.

The best way for employers to track employees without disrupting the workplace is to keep the workers informed. Do this by following a few simple rules.

• Have a clear policy: Let employees know what monitoring is happening and what disciplinary action to expect. Your policy should be easy to state and printed in the employee handbook or onboarding guidelines.

• Have a reason for the monitoring: Arbitrary intrusion is less acceptable than a valid concern. Previous theft, hacking, and data breaches are justifications for monitoring.

• Be open to alternatives: The newest, shiniest software isn't always the best. Sometimes trusting your employees or a quick phone call in the morning is better than all the fancy employee monitoring systems you can buy.

• Be realistic: Before reading employee emails and installing video cameras, ask if you need to track your employees. Is your workflow compromised by employee misconduct or malingering? The less you need it, the more a court may find you have invaded your employees' privacy.

Questions About Monitoring Employees? Speak to an Attorney

Understanding how to monitor your employees legally is essential to running your business. But making sure your current policy complies with the law can be confusing. Speak to a local employment law attorney today to determine if your policies obey the law. Get help updating your employee handbook, if necessary.