Spying on Your Employees? Better Understand the Law First
There are several strategies for firms to increase workplace productivity, from removing distractions to introducing technology automation. Software for tracking and monitoring is one approach. In recent years, workplace privacy and employee monitoring technologies have proliferated, particularly as a result of the accelerated development of digital technology and the consequent simplification of the use of surveillance platforms. It is crucial to comprehend how federal and state regulations impact this kind of technology and how to employ it in your corporation if you want to use it.
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What is monitoring in the workplace?
Employers may monitor their employees’ movements and actions by using a variety of techniques, which are referred to as “employee monitoring.” These techniques include time clocks, video surveillance, GPS devices, staff tracking software, and biometric technologies. For instance, video monitoring may improve the efficiency and security of your company. A thief may be caught on video, which lowers the cost of shrinkage.
Systems for tracking and overseeing employees also fulfil other crucial functions. Their major objectives are to stop internal theft, assess staff productivity, check on the efficient use of business resources, and gather proof in case of future legal action.
Time and attendance software is one kind of employee monitoring technology that is sometimes seen as a whole distinct set of capabilities. Time and attendance systems provide your company with a record of when workers work and take paid time off, which is useful not only for calculating employee pay but also in the event that a disagreement over employee hours or vacation time ever results in litigation. Additionally, these computerized systems accurately record the beginning and ending times of each employee’s workday, which may be used to estimate productivity levels.
You may install staff monitoring software on corporate laptops or, if your team’s activities include driving, install GPS fleet tracking technology in your company cars in addition to standard video surveillance in the office.
Regardless of the technology they deploy, some company owners may not be aware of the proper limits to their ability to observe employee behaviour. To set boundaries, it is always preferable to refer to federal and state employee monitoring laws and regulations.
Employee monitoring laws and regulations
Employers are given latitude by federal and the majority of state privacy regulations regarding the scope of their employee monitoring programmes. Depending on state and municipal legislation, there are times when employers are not required to let workers know they are being watched. Certain laws do call for employee approval.
When on business property or utilising company tools, such as computers or automobiles, workers often have minimal expectation of privacy, according to Matt C. Pinsker, an adjunct professor of homeland security and criminal justice at Virginia Commonwealth University.
Federal workplace privacy and employee monitoring laws
The Electronic Communications Privacy Act of 1986 is the primary source of federal rules governing workplace privacy and employee surveillance. The ECPA permits company owners to keep an eye on every employee’s written and verbal correspondence as long as there is a good business basis for doing so. If the worker agrees, it also permits further observation. The ECPA permission requirement, however, may be challenging since it might be interpreted to permit the surveillance of workers’ private and professional conversations.
Additionally, a number of federal court judgements have established that it is acceptable for employers to lawfully go through emails that their workers have written. This is so because the ECPA considers any electronic messages that are actively in transit to be “electronic communications.” These messages become into “electronic storage” once they are sent, and courts have ruled that employers may keep an eye on this.
In general, surveillance must be reasonable. Video monitoring is permitted in public spaces and at entrances, but it is legally forbidden in restrooms and locker rooms and might subject a business to legal ramifications.
When you save any recordings, particularly of meetings, another problem occurs. You could be required by law to maintain meeting recordings with workers and provide them to a court if there is a legal dispute, particularly if such discussions are about HR or disciplinary matters.
Monitoring online activity on computers is unique and may be subject to distinct legal rules. Computer monitoring software comes in a variety of forms, some of which can show you precisely what your staff are doing on their computers. Everything that workers do on office Wi-Fi, including the websites they visit and the keystrokes they make on company computers, may be seen. One should generally presume that everything done on a corporate-owned computer is visible to the employer since there is almost no reasonable expectation of privacy for an employee using a company device.
While it’s OK for companies to keep an eye on their workers’ computer use to ensure they aren’t spending time on social media or pointless surfing, they should be aware that doing so runs the danger of revealing too much information. Employers already own the most sensitive information on their workers, and if they reveal this data to anybody, they may violate privacy rules like HIPAA.
Even if an employee’s browser history or other private information is saved on a work computer, it is your responsibility as the employer to safeguard such information. For instance, if a data breach happened and any sensitive information was made public, the employer would be open to legal action from the employee.
State workplace privacy and employee monitoring laws
No two states have the same workplace privacy and employee monitoring regulations, as is the case with any topic that is subject to state regulation. The following states have the most significant laws:
Any business that keeps track of its workers at work must give them advance written notice and explain the tracking procedures.
California, Florida, Louisiana and South Carolina:
The constitutions of each of these states specifically specify that citizens have a right to privacy. Employers in these states may thus need to exercise caution while putting in place staff monitoring systems.
You may be best served by verifying with your legal counsel that your use of this technology complies with all applicable federal and state laws in order to be safe.
Tips for communicating employee monitoring to employees
There is no need that your personnel expressly understand and consent to video surveillance. Visible notice saying that security cameras are in use on the property may be sufficient to satisfy all moral and legal requirements. Internal employee theft is often avoided by reminding employees that everything is being recorded by cameras.
Being transparent is usually a good idea. Given that many workers find monitoring unsettling, it’s critical to be open and transparent about your objectives and how surveillance fits into your company’s objectives. 77% of working Americans would be less worried if their company monitored their digital activities on personal or work-issued devices they use to do business, according to a poll by Dtex Systems, as long as they are upfront and clear about it.
In reality, openness may increase workers’ willingness to submit to various forms of monitoring and surveillance. At IT startup Three Square Market, some 50 of the company’s 80 workers willingly had microchips inserted into them. The chips made it possible for the staff to enter the facility and purchase lunch without having to maintain track of an ID card. Due to Three Square Market’s candour about the use of the microchips, more than half of its staff members freely took part in the experiment.
While Three Square Market’s monitoring technology isn’t yet widely utilized, Amazon was granted a patent for vibrating wristbands in 2018. These bracelets alert workers when they complete jobs improperly. The business thinks the wristbands might speed up operations even though there are no reports of them being utilized or even made yet. Opponents are concerned that workers might become less human due to technology. Organizations will undoubtedly have additional chances to track and monitor personnel as technology progresses. Business leaders must pay attention to employee input when these new possibilities emerge and evaluate the laws governing employee monitoring.
As previously indicated, GPS monitoring, which is often included with fleet tracking and telematics on business cars, is another method companies may keep an eye on their workers. Even when an employee is not working, managers may follow a corporate car and its whereabouts using the majority of fleet management software. Owners of businesses may do this since they have a right to know the location of their property. However, businesses might discover more than they need to about an employee’s activities when they are off the clock when they use GPS monitoring on company-owned devices like computers and phones.
It’s always advisable to err on the side of openness and proportionality when it comes to staff monitoring. For instance, deterring computer usage for purposes other than work by clearly stating your company’s policy may reduce unwanted behaviour without the need for overt staff monitoring.
According to Joseph Lazzarotti, a principal at Jackson Lewis and head of the firm’s Privacy, Data and Cybersecurity practice group, “a balance can be reached by thinking through legitimate business interests and weighing them against the expectation of privacy of employees while also taking into account regulatory limitations, which may differ state to state, country to country.”