Surveillance of Employees: The Good, the Bad, and the Ugly

COVID-19 has radically changed the way most businesses and employees picture the workplace. Many companies have made the transition to fully remote work, which has had both positive and negative effects. Even more companies are using a hybrid model, where employees may be physically at work part of the time. Some companies, like Google, have continued to flourish, while others may have noticed a dip in employee productivity. Where productivity has dipped, some employers have implemented surveillance measures to better keep track of work hours. Employee surveillance is not a new concept, but it is rapidly on the rise. Some employers have implemented simple activity monitors, which report when an employee is actively using his or her company device, while others have resorted to more invasive programs that track the work done in real time or even include video or audio monitoring.

Is an employer allowed to surveil an employee, even while the employee is at home? The short answer is yes, in most circumstances. However, there are still legal concerns. An employer who provides a company laptop or cell phone, for instance, has greater freedom to monitor activity on those devices than when the employee is using his or her own laptop for work. Some laws also provide guidance on where and when an employer may monitor employee activity.

There are two contexts under federal law where employee surveillance may be illegal (and there may be more limitations under state laws). The first, and more narrow, applies in circumstances where union activity is involved. Under the National Labor Relations Act,¹ it is illegal to create even the “impression of surveillance” of employees engaged in union activity because of the coercive effect such an impression may have. The second, and broader, limitation is under the Electronic Communications Privacy Act of 1986 (ECPA).² Under the ECPA, it is illegal to intentionally use, intercept, or obtain electronic or oral communication. But the law provides two exceptions. Under the first exception, employers have the right to monitor any electronic and oral communication so long as there is a “legitimate business purpose” to such surveillance. The second exception is when the employer obtains informed consent.

The ECPA consent exception is similar to some state laws about recording people, like two-party/all-party consent laws of states like Florida or California. In such states, having a legitimate business purpose for video or audio monitoring employees would not save the employer from a lawsuit (or criminal charge) for recording without consent.

An activity monitoring service that merely displays when an employee has logged on or off a company laptop is not likely to violate either federal or state law while a monitoring service that tracks the actual work done on the device is a little more intrusive. And monitoring that actually videotapes or audio records an employee is the most intrusive.

In addition, companies should consider workplace culture and morale. It is often dispiriting or even degrading for an employee to know they are being monitored to see if they are working. It may be better to put effort in creating a good company culture, training, and retaining valuable employees.

Employers should define in their policies the degree of privacy employees can expect in their electronic devices. For instance, employers may state that they have the right to access work email as needed (which can be useful if there is an emergency situation or to save records from departing employees.) It’s probably wise to be honest about the degree of actual monitoring of employees going on both for legal reasons and morale. An employer should usually contact an employment attorney for help drafting policies and procedures to encourage both employee retention and productivity.

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¹ National Labor Relations Act, § 8(a)(1), 29 U.S.C. § 158(a)(1).

² 18 U.S.C. § 2517, et seq.

Featured Image by Rebecca Sidebotham.