The Right and Wrong Ways to Electronically Monitor Employees in the Workplace
Whether because of our new "work from home" world or advances in technology (or both), many employers now electronically monitor their employees in the workplace. A variety of electronic surveillance techniques are relatively common these days – keystroke monitoring, idle time tracking, video and audio surveillance, GPS systems, and fingerprint scanning, to name a few.
Employers do not, however, have carte blanche to electronically monitor employees however they choose. Federal and state laws and constitutions govern electronic surveillance in the workplace. And nowadays, the "workplace" often includes an employee's home. Below are a few considerations for employers, as well some practical tips for mitigating legal risk.
What Are the Benefits of Electronically Monitoring Employees in the Workplace?
Electronically monitoring employees in the workplace often helps employers keep an eye on employee productivity, promote a safe and secure work environment, enforce workplace policies, and detect inappropriate or illegal behavior, such as trade secret theft or violations of applicable legal or regulatory obligations. Electronic monitoring can also help an employer obtain favorable evidence related to workplace disputes and, in some cases, can help assuage the concerns of an auditor, investor, or insurance provider. There are also cost savings in many instances, since electronic monitoring is often less expensive than paying an employee or outside vendor to physically monitor employee behavior and workplace activity.
What Are Some of the Laws Restricting Workplace Electronic Surveillance?
Both federal and state constitutional provisions and laws impose certain conditions for electronically monitoring employees in the workplace. A common theme across different jurisdictions is an employee's right to privacy, whether created by the judiciary or the legislature. In addition, unionized employers may face other limitations under the National Labor Relations Act or an applicable collective bargaining agreement.
At the federal level, the Electronic Communications Privacy Act (ECPA) governs the monitoring of electronic communications in the workplace. The ECPA generally prohibits intentional interception and monitoring of employees' oral, wire, and electronic communications. That prohibition is subject to two big exceptions, however – where the monitoring activity is done for a legitimate business reason or where the employer obtained the employee's consent. Employers are also not prohibited from monitoring activity in which the employee did not have a reasonable expectation of privacy, such as activity on a company-owned device or networks (e.g., company-issued laptops or cell phones, or company-owned computers, email, or internet). Accordingly, the ECPA does not prohibit employers from reading employees' "electronic communications," such as emails or instant messages, when the communications are sent through and electronically stored on the employer's network system.
The ECPA sets the floor for restrictions on employee monitoring. Therefore, employers should be mindful of any state laws that impose greater restrictions. Most state laws relate to whether an employee must receive advanced notice of an employer's potential monitoring activities.
New York, for example, recently enacted a law that requires private employers to notify employees if they monitor or otherwise intercept phone conversations, email, or internet access or use, or the use of any other electronic device or system, such as a computer, telephone, wire, or other electronic communication system. New York employers must also conspicuously post the notice and obtain employees' acknowledgment of receipt of the notice. Connecticut and Delaware impose similar requirements on employers to provide prior written notice to employees of the types of electronic monitoring that may occur. Unlike in New York, however, Connecticut employers are not expressly required to obtain their employees' acknowledgment of the notice. And in Delaware, employers may choose between notifying employees each time they access the employer-provided systems or internet or, alternatively, issuing a one-time written or electronic notice to the employee and obtaining employee acknowledgment.
Employers who monitor and record employees' phone calls should also consider the different state laws for recording a conversation. These different state laws are often referred to as "one-party consent" or "two-party consent" laws. A two-party consent state may prohibit the recording of employee phone calls altogether, even if prior notice of the monitoring activity is issued to the employee.
In addition, while public employers' electronic monitoring activities are typically restricted by the federal constitutional right to privacy, private employers are generally not restricted by federal constitutional provisions. That does not mean, however, that all constitutional rights are inapplicable to private employers. Several state constitutions, such as the constitutions of California, Florida, Louisiana, and South Carolina, expressly guarantee citizens a right to privacy, which may extend similar protections to private employees. Employers in such states should consider the suggestions below for reducing the likelihood of an employee privacy claim brought under a state constitution.
What Should Employers Do to Limit the Risk of a Workplace Surveillance Lawsuit?
For most employers, the advantages of workplace electronic surveillance will outweigh the legal risks. Plus, with the proper procedures and policies in place, the legal risks are usually manageable. Here are a few considerations for employers to minimize the legal risks of electronic workplace surveillance:
Obtain signed acknowledgments and written consents from employees before monitoring or recording their communications and electronic activities.
Consider how electronic surveillance evidence may relate to potential employment claims, such as discrimination claims or wage-and-hour claims. Evidence of employee misconduct learned through electronic surveillance should be dealt with consistently. Otherwise, employers may be subject to discrimination claims based upon an employee's protected characteristic. And if employers rely upon electronic surveillance to record employees' work hours (e.g., keystroke monitoring, idle time tracking), they should evaluate whether some work tasks may fall outside the purview of electronic monitoring, such as tasks that do not involve a computer.
Employers that monitor the workplace and employees' electronic activities should also consult experienced employment counsel regarding the specific laws applicable to the jurisdictions in which they operate.