Navigating Workplace Surveillance: Balancing Privacy And Productivity

Workplace surveillance is becoming more common as employers seek to monitor productivity and safeguard their operations. According to a recent survey by Gartner, 60% of large organizations use tracking tools to monitor employee activity, a number expected to rise to 70% in the next few years. The shift to remote work has accelerated this trend, with nearly 50% of companies adopting digital monitoring tools for remote employees, according to a 2023 survey by Digital.com.

These tools raise important concerns about employee privacy and the boundaries of surveillance. In this post, we’ll consider the legal aspects of workplace surveillance, the different methods used, and how companies can define and review a monitoring proposal. The opening source-reported figures are inherited and have not been newly validated here; they do not establish that monitoring is necessary or effective.

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Legal Restrictions on Workplace Monitoring

Before monitoring employees, ask responsible HR, legal and security owners to resolve the proposed purpose, device, communication and location scope, access and retention, and review applicable federal and state requirements.

Federal and State Laws

Review how the Electronic Communications Privacy Act (ECPA) and applicable federal and state requirements relate to a proposal to monitor business communications. For locations in states like California, ask what notice or employee consent questions need resolving for certain types of surveillance.

Common-Law Claims

Review common-law claims for invasion of privacy and ask how to assess whether the employee had a reasonable expectation of privacy in the situation. For example, how will personal calls made on a work phone be handled once identified as non-work-related? Include personal or privileged information in the review.

Labor Relations Issues

Have responsible reviewers examine National Labor Relations Act (NLRA) questions about employees engaging in union-related activities or discussing workplace conditions. Include monitoring such communications and protected concerted activity in that review.

Types of Monitoring

Employers use various types of monitoring tools to track activities in the workplace, each of which requires careful consideration of its impact on employee privacy.

Monitoring Telephone Calls and Voice Mail

For a call-monitoring service such as Nice, document the proposed purpose, calls and data to be collected, access permissions and retention period. Ask the provider to demonstrate the relevant settings, and have the responsible people review the proposed use before deployment. Do not treat a vendor choice as proof that monitoring respects privacy or meets legal requirements.

Monitoring Email and Text Communications

When evaluating a service such as Proofpoint, identify which communications you propose to inspect and which data should be excluded. Check the provider’s current documentation and test the required controls. Record access, retention and employee-notice decisions; monitoring should not be treated as a guarantee that confidential information cannot be shared.

Monitoring Internet Use

When considering tools like Teramind to track employee internet use, ask what current documentation establishes about activities like website visits, file downloads, and app usage. Define the proposed data and device scope, viewers and retention; review less intrusive alternatives with responsible owners. Do not assume this type of monitoring focuses on security rather than employee personal behavior.

Video Monitoring/Surveillance

If you are considering video-monitoring providers such as Coram, first document the proposed camera locations, purpose, recording schedule and access to footage. Have the responsible people review the deployment and its applicable requirements. Verify any separate access-control measures instead of assuming that a camera prevents unauthorized entry.

Monitoring Remote Workers

When evaluating remote monitoring software such as Hubstaff, ask what current documentation establishes about logging hours, tracking keystrokes, and taking screenshots of employee work. Define the proposed data and device scope, viewers and retention; compare less intrusive alternatives with responsible reviewers. Ask about allowing employees to review their logged time and activities.

Monitoring Off-Duty Conduct of Employees

When considering services like Social Intelligence, check current documentation on employees’ off-duty social media activity. Ask whether this type of monitoring is limited to public posts and activity; do not treat public availability as permission. Define the proposed account and data scope, viewers and retention; review less intrusive alternatives with responsible owners to avoid overstepping into employees’ private lives.

Establishing a Company Wide Policy

A clear and transparent monitoring policy starts with a proposal for review. Here are steps for crafting a comprehensive surveillance policy:

1. Define the purpose – Specify a concrete purpose and the reasons for it; compare less intrusive alternatives.
2. Define the scope of monitoring – Specify what will be monitored (e.g., calls, emails, internet use), including devices, people, hours and data; state what is excluded.
3. Obtain responsible review – Have HR, legal and security owners resolve applicable requirements and notice or employee consent questions before proceeding.
4. Be transparent – Clearly communicate the purpose of the monitoring, when it will occur, and what data will be collected. Provide a route for questions and disputed records.
5. Assign data responsibilities – Specify who controls access, retention and deletion of monitoring records.
6. Review policies regularly – As technology evolves and laws change, companies should regularly update their monitoring policies. Set a review date to decide whether to continue, reduce or stop against the stated purpose.

What types of workplace monitoring are covered here?

The types of workplace monitoring covered here include phone call monitoring, email and text monitoring, internet use tracking, video surveillance, and monitoring remote workers' activity through software, plus off-duty social media proposals. Review each proposal's purpose and privacy questions.

Is workplace monitoring legal?

Ask responsible HR, legal and security owners to review the proposed scope against the Electronic Communications Privacy Act (ECPA) and any relevant state laws, and resolve applicable requirements and notice or employee consent questions for specific types of monitoring.

Can my employer monitor personal phone calls or emails?

Ask your employer to define the proposed scope for business-related calls and emails and explain how personal information will be excluded or handled if a call or email is identified as personal. Pause the proposed use if scope or personal-information handling remains unresolved.

Conclusion

Define the monitoring proposal’s purpose, including any goals for protecting company resources and maintaining productivity. Use the checklist when establishing clear policies, then take the proposal and unresolved questions about the balance between business interests and employee privacy to responsible HR, legal and security owners for review.