We Need More Screen Time – Let's Watch Our Employees

Or maybe not.

Questions about employee monitoring, especially electronic monitoring, come up regularly these days. Monitoring can involve email, computer log-in history, surveillance cameras, GPS devices, and various types of production metrics. Care is necessary, however, not to run afoul of various labor and privacy laws.

Why watch?

Why do employers implement monitoring policies? Reasons include increased productivity, safety, proper use of devices and equipment, protection of confidential data, and tracking of hours worked and expenses incurred. New electronic monitoring issues have arisen with the increase in remote work. Sometimes surveillance can be game-changing evidence in employment litigation.

What are the risks?

From the labor side, the National Labor Relations Act (NLRA) prohibits monitoring for the purpose of discovery or tracking of union activities. In other words, spying never has been allowed, and electronic monitoring is just another form of spying. Monitoring obviously cannot be used to discriminate or retaliate in any way. You cannot just monitor the complainers. Additionally, if employee monitoring infringes too deeply into personal matters for which there is no business justification, state common law right-to-privacy doctrines can be violated. Finally, state regulatory laws often come into play and can limit efforts of employers even when allowed under federal law. We blogged about a 2022 New York law here.

Also be mindful that there are specific federal statutes that regulate the monitoring of electronic data, even though there are exceptions for the monitoring of employees using company devices and programs. The two main statutes are the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCA). To meet a specific exception to the restrictions in these statutes, the monitoring activity normally must be done for legitimate business reasons, when the employer has obtained the employee's consent, or when no reasonable expectation of privacy exists. Despite what many employers believe with regard to their right to examine employee devices used for work, many times those devices have links to personal communications or data that actually is not stored on company equipment. That sort of third-party stored data should be approached very carefully upon the advice of counsel or not at all.

What are recommended steps?

First, determine what your true company business needs are.

Set up a policy. What exactly will be monitored and why? Communicate that through normal employee communication channels.

Obtain consent. If the plan is to read employee emails or to put tracking devices in employee vehicles, have a signed form — hard copy or electronic — that shows the consent by specific name and specific date.

Consider right-to-privacy issues. If your company policy is to preserve the right to search employees' more personal spaces, such as desks or lockers, how will you apply that same policy to data storage for example? Where do the surveillance cameras go? Maybe outside the restrooms but not in them.

Finally, think about whether you need to address recording in your policy. With the increasing use of AI, more and more programs and apps are available for recording traditional and virtual calls and meetings. While many states have a single-party consent rule, some states require all parties to consent to a recording. A clear policy is good to have.

So, be careful.

Plan for employee monitoring that is based upon business needs and can be defended under applicable laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.