The COVID-19 pandemic has forced employers around the world to transition to a remote workforce. In many cases, this transition happened virtually overnight, without much time to prepare. Although many managers have been pleasantly surprised by the productivity of their remote staff, others have found it a challenge to keep employees focused and motivated.
Managing a remote workforce undoubtedly presents a number of challenges. Without the ability to see employees in person, employers have turned to various forms of technology to assist them in monitoring employee performance. This has led to uncertainty—on the part of both managers and employees—about what employers can and can't do to keep tabs on remote workers.
Many of the tools used for remote employee monitoring are based on monitoring that has long occurred in offices, warehouses, and other work sites. They include:
Some of these tools may be adaptable to remote working situations; others may not. In general, employers are on safe legal ground when monitoring employer-provided devices, such as laptops and smartphones. More intrusive monitoring is often permissible as long as it's done for a legitimate business purpose, although in some cases employee consent is required. Much depends upon the laws in your state.
Employers should also bear in mind that overly intrusive monitoring can harm employee morale and erode workplace trust. Just because a monitoring technology is legal doesn't necessarily mean it's a good idea for your business.
At the federal level, the Electronic Communications Privacy Act (ECPA) of 1986 is the main statute governing how and when employers may monitor their employees. Under the law, employers can monitor employees in the workplace, including both written and verbal communications, for any legitimate business purpose. They can use further monitoring methods with their employees’ consent.
Monitoring is generally limited to business-related activities. An employer can monitor or record calls made on their own phone lines, but they should not snoop on employees’ private phone calls or emails. Employers can use video surveillance in areas where no one reasonably expects privacy, but they cannot place cameras in private locations like restrooms.
Computer usage may present additional concerns. Employers can keep track of employees’ internet usage, for example, to gauge productivity and guard against time-wasting activity. If an employer saves data about their employees’ internet usage, they could become liable for safeguarding information that could be used for identity theft or other illegal activities.
Many states have their own laws that are more protective of employee privacy than federal law. They might require employers to disclose to their employees all forms of monitoring used, to obtain their consent in advance, or to prohibit certain kinds of monitoring. This area of law is rapidly changing, so if in any doubt contact a knowledgeable employment attorney in your state.
Whether a particular form of monitoring is permissible sometimes depends on whose property is being monitored: the employer's or the worker's. An employer can access email and other data stored on its own computers with no concerns at all. If it provides remote workers with devices to use specifically for work, it can monitor how they use those devices. An employee using his or her own laptop computer, tablet, or smartphone to work from home, however, has a reasonable expectation of privacy in how they use those devices during their personal time.
If an employer uses cloud-based systems that take up minimal space on employees’ computers and mobile devices, it might be relatively easy to maintain separation between “business” and “personal” uses. This requires everyone involved, from executives and managers to regular employees, to understand how to use the software properly. Even if notifying remote employees of all monitoring activities is not required by law, employers might find it to be helpful to employee morale to do so.
More invasive monitoring technology, such as keystroke loggers or GPS monitoring, presents additional problems for remote workers using their own devices. Employers may have an interest in monitoring how their employees are spending their time during work hours, but remote work often blurs distinctions between “work” time and “personal” time.
Actual video or audio surveillance of remote workers is not advisable, unless an employee gives genuinely informed consent. A likely scenario in which an employer remotely monitors workers in this fashion might involve the use of videoconferencing software like Zoom, to ensure that an employee remains at their computer and working. While this method is usually legal, it is not likely to help employee morale.
Potential legal pitfalls for employers may come from the act of monitoring itself, such as if an employee alleges invasion of privacy. It may also involve data security if an employer retains information obtained from employee monitoring.
Aside from state or local laws governing employees’ privacy rights, an employer could be held liable for a tort claim like invasion of privacy for overly intrusive monitoring or surveillance. This type of claim usually requires an intentional act, such as accessing the webcam on an employee’s laptop without permission. Employers may want to avoid even the appearance of such an act, just to avoid the potential for this kind of claim.
Employers may also risk liability for damages caused by data breaches that result in the exposure or theft of employees’ private information. An employer who logs all of their employees’ internet activity on a personal device, without regard to whether it is work-related or not, could end up in possession of credit card numbers, medical information, and other sensitive material that could cause harm if not kept secure. An employer does not want to have to tell their employees that a data breach on the employer’s computers might have exposed them to the risk of identity theft.
There's no shortage of software for employers who want to keep tabs on their remote workers: Time Doctor, Teramind, Interguard, and Hubstaff are just a few examples. These programs offer features ranging from timekeeping and project management functionality to keystroke tracking, audio tracking, screenshotting, and more. Most require employers to sign up for a monthly subscription, and prices tend to vary depending on the size of the company.
If you're an employer wondering whether you're allowed to use certain technology to monitor your remote employees, or if you're a worker whose privacy rights are being violated, consider contacting an employment law attorney to discuss your legal options.