The Legality of Employee Monitoring

Like in any niche, leadership, and supervision are key aspects of business operations. The administration and management departments play important roles in ensuring each business process is properly executed and each agreed goal is efficiently achieved. This is where employee monitoring comes in handy – a business strategy proven to be effective. So whether you’re managing or overseeing on-site or at-home employees, read on to learn more about the technicalities, as well as the legality of employee monitoring.

What Is Employee Monitoring? 

In a nutshell, employee monitoring is a broad term that refers to the act of supervising employees. In most cases, it involves intricate staff tracking and thorough activity monitoring. Though a bit complex, especially since it involves several factors, it’s considered and proven to be an effective and efficient business strategy. It grants real-time access to what certain employees are doing or how they execute certain tasks, making it, indeed, a wise management move. Hence, remote employee monitoring as a business strategy is widely adopted by businesses, regardless of their niche.

Employers use a wide variety of methods to surveil their processes, facilities, and people. In the same way, business owners put in place several employee monitoring processes for varying reasons. Some do it mainly to ensure proper usage of company resources while others execute such to protect their clients’ data. This is also probably the reason why there are several methods and tools available to monitor on-site employees and/or digital workers.

U.S. Laws About Employee Monitoring

In the United States, employee monitoring or tracking is generally legal. While there could be slight differences in state or local laws, the rule of thumb is that provided that it’s within work hours, within work premises, or it’s a company-issued or company-owned device, the employers have the right to surveillance. This is, of course, provided that there’s a legitimate or valid business intent.

There are several laws in place and most of these are in favor of employers. Such laws govern the extent of employee monitoring and the acceptable methods or means. Generally, employers are permitted to track their employees, especially those that are in the field. And while certain states require verbal or written consent, Federal legislation doesn’t require employers to disclose to their employees that they are being monitored.

Here are two federal laws that have the widest coverage of governance when it comes to employee monitoring.

• Electronic Communications Privacy Act of 1986 (ECPA)

ECPA is a federal law permitting employers to monitor verbal and written communications within their workplaces. It gives the employers power to monitor all employee activities provided that it’s within company properties, including company-owned resources that aren’t on-premise like a company truck used for delivery or a company computer used by an employee working from home.

• Stored Communications Act (SCA)

The SCA is another federal law that governs stored records or communications. While it permits employers to monitor offline activity logs and online communication logs kept within the employer’s network, it prohibits them from reviewing private communications. This law prevents employers from looking into employees’ personal emails or conversations, secure websites, and private social media accounts or pages.

Aside from federal laws, there’s a myriad of state laws that regulate employee monitoring within their jurisdiction. Here are some states with such regulations.

• Prior Notification

Connecticut Gen. Stat.§ 31-48d and Delaware Del. 6 Code § 19-7-705 requires proper notification before the execution or the use of any monitoring software within the workplace. Most specifically, these two states require employers to advise employees in case their email IDs would be monitored.

• Social Media Login Credentials

Several state laws prohibit employers from asking or requiring their employee’s social media login credentials. The states that have such laws in place are California, Illinois, Maryland, Michigan, Nebraska, New Mexico, New Jersey, Utah, Washington, and Wisconsin.

• Two-Way Consent

Some states like Maryland require two-way consent, or in the case of phone call monitoring, all parties involved must provide their consent beforehand.

What Employers Can Legally Monitor

The general rule when it comes to employee monitoring is that provided it’s within the office premises and/or company-owned devices or facilities, employers have the right to surveillance. And in certain circumstances, provided there’s a strong legitimate business intent, employers are allowed to conduct phone or PC monitoring on personal devices used to access work apps or in the case where the company exercises a Bring Your Own Device (BOYD) policy.

Here are some of the data or files that employers are legally allowed to monitor.

• GPS Locations – GPS locations of vehicles or smartphones owned by the company provided that it’s within work hours. Tracking personal devices or tracking outside work hours have some legal gray areas at least in some states.
• Phone Calls – Calls using company-owned telephones or mobile phones. However, even if the equipment used is owned by the company, the employer is required to stop monitoring as soon as it’s determined that it’s a personal conversation.
• Email Messages – Sent and received messages, files, and content within the company’s email system, regardless of whether the email conversations are private.
• Screen Content – All content accessed and even words typed can be tracked on company-owned computers, tablets, or smartphones. Screen content includes screenshots, web pages, photos, videos, documents, and any other viewed file.
• Internet Activities – Internet and social media activities to ensure only work-related sites, pages, or groups are accessed, and to prevent device compromise and data exploitation.
• Video Surveillance – Video surveillance is often utilized for productivity or time tracking. Some businesses also utilize this to ensure proper use of utilities and security within the workplace. Note, however, that federal wiretap laws advise the exclusion of audio on video recordings. Also, most states require such equipment to be installed only in common areas within the work premises. States like California, New York, and West Virginia, for instance, restrict the installation of video monitoring systems in private areas like sleeping rooms, locker rooms, and restrooms.

Different Methods of Employee Monitoring

In most cases, employee monitoring involves the use of exquisite high-tech equipment or programs. Such tools enable business owners to oversee the usage of company-owned devices, track and drive employee productivity, ensure the quality of outputs, protect files and data, prevent internal theft, and more. These can be achieved without the need for physical access to facilities or sites, enabling employers to focus their time and energy on more important business aspects.

Employee monitoring can be executed in different ways using several tools. Here are some of the most trusted and widely used real-time monitoring methods.

• CCTV Cameras – Surveillance software like CCTV cameras or video recorders.

• Wiretaps – Hardware tools or software programs are used to intercept phone conversations.
• GPS Tracking Tools – Tools or equipment specifically designed to track GPS locations of devices and/or vehicles.
• Built-In Software Trackers/Analysis – Output or productivity trackers embedded within a specific application or program like email analysis.
• Biometric and Key Card Scanners – Terminals are used to count and verify access attempts using biometrics or keycards.
• Monitoring Software – Employee monitoring software capable of tracking on-site and remote workers through simultaneous data acquisition and data transmission.
• Time Trackers – Time and attendance systems are utilized to track shift hours and to ensure work hours are maximized.

Conclusion

Bottom line, while employee monitoring is generally legal and recommended to business owners, one must be careful in using any remote best employee tracking software. Plus employers must be equipped with the right tools and knowledge before initiating such an intricate process. Or at least, be privy to the Federal and state laws governing employee monitoring.

Then, while notification and consent aren’t required in most instances, it’s always better to err on the side of caution. Having a signed agreement could significantly save you from any legal ramifications. Plus, if it’s clearly indicated on your company policies that are often discussed during the hiring process or on-boarding, you’d be at peace knowing employee monitoring shouldn’t go sideways.

Nevertheless, such power bestowed on employers should never be abused. Yes, you have a company to run and a business to protect, but it doesn’t mean you should disregard your employees’ rights or opinions. After all, you have to remember your staff are your biggest asset – they are the main ingredient to your business success. Hence, when you decide to conduct employee monitoring, be sure it’s in their best interest.

Above all, micromanagement doesn’t always work. In fact, this business strategy could drive employees away. So, be sure to find that balance between protection and trust, between managing and leading.

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