March 14, 2024
Be Careful What and Who You Monitor
Employers have a lot of leeway in whether and how they monitor employee activity. Generally, if the employee is on site using employer equipment, systems, and internet, the employer can monitor all of it. From keycards tracking employee locations to video surveillance, digital surveillance of what the employee is working on, when they're working, how fast, and when they're idle.
Employees generally have privacy rights in bathrooms, locker rooms, and in their personal possessions like what's in their backpack.
It gets trickier when the employee is working at home on their own internet because the lines about gear and time are not as clear. The article below does a nice job of discussing potential legal issues that can arise with monitoring remote employees. Although, unless the employer is a health insurer, medical provider, or staff for either, HIPAA probably doesn't apply.
The issue I find most concerning is what monitoring does to employee trust and morale and the culture of the organization.
I spent about a year working for a big consulting firm. It was clear from the beginning that employees were more like lab rats. The employer was constantly rolling out new software, sending out surveys that only asked what they wanted to hear, and monitoring everything an employee did on their firm laptop. When I realized they valued me as a data center as much as (probably more than) for my work, I stopped using the firm laptop. I would look at my work phone to check email a couple times a day, enter time into the employee portal once a week, and just send my work product from my own computer to my work email. I kept my personal phone completely separate from my work phone, even though that meant carrying two phones with me sometimes. In short, it was creepy, uncomfortable, and I hated it.
To me, the message was we don't trust you, we want to know everything you do, and we're going to use it for our own benefit and possibly, your demise. And don't even get me started on the project management software experiments that resulted in nobody being willing to even touch the next one.
So don't monitor employees because you can. Make sure you have a really good reason that justifies undermining your employees' trust and privacy. And don't monitor illegally because both state and federal laws may apply.
With the increase in remote work, employers’ concerns over the security of proprietary company information and employee productivity have increased their reliance on technologies to manage and monitor employees.
Many employers have long tracked employees both in and out of the workplace by utilizing an abundance of sophisticated tools to monitor employees’ activities and productivity, including at home or anywhere an employee may be located with a device used for company business. Digital surveillance technologies can review employees’ keystrokes, mouse activity, idle time, and time spent working in different applications or on different activities within company systems. These tools can monitor employee emails and browser activities and can even record conversations between and among employees using on-site video surveillance, GPS tracking and cameras in company vehicles.
There is no doubt that these technologies can be valuable tools for employers. They can provide additional security, reduce liability through early detection of unlawful or inappropriate conduct, streamline the investigation of employee complaints, and allow employers to advance performance goals and manage performance deficiencies. But how should employers use the surveillance tools at their disposal? An analysis of the legal risks and practical considerations associated with employee monitoring may support a “less is more” approach.
In that regard, several federal and state laws would suggest that employers should exercise caution in their use of employee monitoring tools:
In sum, employers with overly broad employee monitoring practices risk running afoul of federal, state, and local laws governing employee monitoring, wiretapping, unfair labor practices, and invasions of privacy. Moreover, practically speaking, too much monitoring may lower employee morale and ultimately be counterproductive to increasing productivity and deterring rule-breaking. Indeed, a recent study by Harvard Business Review found that monitored employees were substantially more likely to break rules and work less efficiently than employees who were not monitored.
Keeping these risks in mind, we offer employers a few practical considerations:
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