Is it allowed for employers to track their employees when working remotely in home-office?

The COVID-19 pandemic has led to a significant number of employees that work from home and that are not physically around in a group office like it has used to be. To keep track on employee’s productivity and effectiveness, team managers and small business owners have started to use monitoring applications such as software keyloggers. This step has raised certain privacy concerns and questions of whether this is ethical and even legal. The aim of this article doesn’t intend to give you a binding legal advice, but worker monitoring can be generally legal if it is done right. If this is ethical or not is a choice and decision everybody need to make for him or herself.

What reasons can an employer have to track an employee?

People that have in mind to operate some sort of monitoring software on their employee have five common reasons to do so. Below there is a summary of the top 4

• the employer wants to protect the company from harmful external cyber security attacks. Social media activities or visiting inappropriate websites can cause serious consequences to the attached hardware and software systems. Documenting what a worker does on the company’s computer equipment can be useful when the cause of the attacks needs to be identified
• on the other hand, cyber security attacks can also be executed internally. Excecuting employee monitoring software can therefore help to discover misusage of trade secrets, client lists or violations against other laws
• collecting evidence about the workers pc usage can be valuable in case of possible lawsuits. When it comes to a trail this information can be used and protect the company
• employee monitoring software can ensure to identify the desired employee – those who consistently deliver strong work results and work on a high productivity level. This is probably the most important reason for the usage of tracking software. It makes sure that the workers are working on the projects and topics that they are supposed to in an efficient way.

Which technology enables employers to monitor their employees?

Employers have been watching employees since centuries but with the internet there have been a lot of new technical ways introduced to manage this. Depending on the device and exact purpose of the surveillance, employees have a variety of options what they monitor in detail:

• monitor the keystrokes they type into the device
• recording the visited websites and internet traffic
• taking real-time screenshots of the device-monitor
• accessing the devices webcam
• protocolling when a user get access to a certain file in the database
• tracking the physical device location by GPS-signal
• measuring worker productivity, like analyzing computer idle time by the timestamp of log on and log off for example

Generally, when an employee uses company equipment on the company network, the employer has the right to monitor the certain activity. If the employee is using his own device and internet connection for work activities, it’s quite likely not legal if the employer monitors its worker, although it might be legal.

Another way about the legal situation is just to be transparent about the situation. When the monitoring is part of the legal section within the work contract or when you are suspicious the employee can be informed about the surveillance. It is basically the same thing with a non-drug-policy at work. When you make the be-transparent-aspect part of everyday work – everyone knows on which side they are and how to deal with it.

Employee Monitoring in context of Federal Law

One of the most important laws when it comes to employee monitoring is the electronic communication privacy act of 1986 (ECPA). Section 1 of the ECPA is known as the Wiretap. It states that is illegal to intercept, handle, disclose or somehow else obtain any wire, oral or electronic communication intentionally. Section 2 covers the Stored Communications Act (SCA). As the name mentions its aim is to keep privacy of stored electronic information. Section 3 of ECPA includes trap and trace devices. Some devices don’t record the content of the specific conversation, but do record private information like a number dialed or the original source of a call location.

The ECPA appears to prevent some forms of concrete employer tracking, but it has some important exceptions that can be applied in the usage of employer monitoring. The major exceptions are stated below:

• business use exception: employers are allowed to track oral as well as electronic communication of their employees as long as there is a legitimate cause for the business to do so
• consent exception: employers are allowed to monitor employees’ communication (such as activity on work devices like smartphones or laptops) if their permission is granted (for example through an attachment to the working contract)
• location of the information: The Stored Communications Act doesn’t protect the privacy of stored data when it exists on the employer owned systems (like Cloud, computer hard-drive, telephone, etc.)
• forms of technology: As the act was already published in 1986 it is not referred to up-to-date technology advancements. Terms like keylogging systems and digital data-streams are not mentioned and not described in further detail

This is only an overview with some insights on US-federal-law. State-laws or laws outside of the United States of America may include other perspectives of privacy protections.

Employee Monitoring in context of state Law
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As mentioned above, some states have a different view on employer monitoring activity with a stricter regulation. Fore example some states like Maryland, California and Illinois demand the explicit permission of employee to the monitoring to do so. In other states a notice in advance to the surveillance has to be given to employees (this is the case in the states Delaware, Connecticut and New York for example).

Other Laws with impact on employer monitoring

The National Labor Relations Act (NLRA) protects the right of employees in a different way. The National Labor Relations Board, or short NLRB, enforces the legal NLRA and has demonstrated that monitoring of employees who are engaged in certain activites can be an treat unfair.
 
Furthermore, the well-known attorney client privilege, which can potentially protect an employee’s communication even it has happened on a company’s computer during regular working hours. How this aspect applies can be determined only when applicable in the concrete situation.

Just to mention an example, if an employee communication to his or her attorney from a personal web-based email account using her own bought laptop during regular working hours from home, there is a high chance that this sort of communication is protected under attorney client privilege, whereas a communication from the business mailing account with company hardware might apply to a different ruling.

Practical usage of employee monitoring tools

As a short summary, laws on federal and state level will not directly state yes or no regarding the legality of the many different types of employment tracking that can be performed. The legal aspects are and will be not 100% clear, but some principles can be used to protect employers from legal consequences.

Much of the monitoring activities will never come out, just when they are major reasons to use the information gathered like inappropriate behavior at work, internal complaints or lawsuits. From a morale perspective it can be bad because employees feel supervised 24/7 and that they cannot be trusted. But when used in the right way employee monitoring can also improve your team. Just be really honest about why the monitoring takes places and how it will positively affect the company. An employee can give the employees also more flexibility with the usage. For example, new more flexible working hours can be introduced or also awards for the most productive employee of the month. The upsides of the tracking need to be mentioned and make the new procedure look like a good integration in the system.

What needs to be considered
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In most cases employers can legally track what is happening on the company equipment as longs they have a legal agreement with the employee or it happens for a legit business cause. Using your regular work time when you are getting paid for private causes like using social media or watching videos on YouTube that don’t relate to your work usually come with a risk of being caught and getting sanctioned by your team manager. The advantage of employer monitoring is at the best when everybody knows why the surveillance is done. With this transparency it can by an advantage for the both – the employer as well as the worker. With the right approach and strong productivity results also the success of the company can be invested back into the workforce by improving the standard salary, adding bonuses because of the grown success or reducing normal working hours because know the daily business is being handle in a shorter period of time.