Using employee monitoring software in the U.S is legal. However, before adopting this increasing trend to your workplace, you should understand various laws guiding its use. With the rising adoption of technological tools in workplace environments, employers use employee monitoring software to track their employees’ activities and location. This act is guided by the Electronics Communications Privacy Act of 1986 and some state laws.
However, employers should observe maximum transparency in rolling out employee monitoring practices to make their employees feel secure and protect the business from legal actions.
What is Employee Monitoring?
Employee monitoring is when employers use various monitoring methods to surveil their employees’ activities and whereabouts at the workplace. The methods are not limited to video surveillance, biometric technology, monitoring software, GPS, and time clocks. It also involves checking website logs, using automated software to check emails, phone calls, and obtaining data from credit reference agencies.
Employee monitoring benefits the business in several ways, among them preventing internal theft, evaluating employee productivity, ensuring proper utilization of company resources, and provides evidence in case of litigations.
Time and attendance software is a common employee monitoring technology that records employee logged-in hours. This not only helps in calculating payments but also solves any arising overtime disputes. Apart from the simple video surveillance systems, employers can also install employee monitoring software.
Regardless of the form of technology used, some employers don’t know the extent to which they should monitor their employees. If you are in this fold, consult employment lawyers for guidance on federal and state employee monitoring regulations.
Employee Monitoring Laws to Know
The federal and state privacy laws outline discretions that employers should observe when rolling out employee monitoring programs. Depending on state and local laws, employers might be required to inform employees that they are being monitored. Others laws require consent from employees. Nonetheless, employees should expect less privacy from companies, especially when using company equipment.
- Federal Workplace Monitoring Laws
Federal employee monitoring regulations provided by the ECPA allow employers to monitor their employees’ verbal and written communications, provided they have a legitimate business reason. The laws also allow additional monitoring if employees consent to the process. However, this presents a tricky situation, as consent from employees might mean that businesses can monitor both private and business communications.
That aside, determinations from several federal cases allow employers to monitor their employees’ emails. This is because emails are electronic messages, which fall under the provisions of ECPA. However, monitoring should be guided by specific reasons. For instance, video surveillance should be done in common and entry/exit areas. Surveilling locker rooms and bathrooms is prohibited and might lead to legal repercussions.
Monitoring your employee computer and web activity falls under separate legal precedence. Several computer monitoring software options can show exact employee activity on their computers. You can monitor their keystrokes, websites accessed on the company’s WIFI, and more.
While it is good to monitor employee computer activities to ensure that they don’t waste time on social media platforms and other frivolous browsing habits, employers should be cautious of acquiring a lot of information. For instance, employers can access personal data that can get them in trouble with HIPAA laws if they share this information with other parties.
Therefore, as an employer, you are responsible for protecting this information, including browsing history and private data stored on company computers.
- State Employee Monitoring Laws
Like other employment laws, different states have varying laws on employee monitoring and privacy. Of all, the most notable states include;
- California, Louisiana, South Carolina, and Florida – state laws in these states stick to the provision that employees have a right to privacy. Therefore, employers should tread carefully when rolling out employee monitoring systems.
- Connecticut – employers should inform their workers in writing before monitoring them. This includes the details of the monitoring methods used.
That said, checking with your legal counsel before using any monitoring technology is prudent. This ensures that you adhere to federal and state laws.
Can Employers Monitor Employee Social Media?
Defining the legality of employers’ ability to monitor their workers’ social media platforms is quite difficult. However, the states of Michigan, New Jersey, Utah, Illinois, California, Maryland, Nebraska, New Mexico, Washington, Wisconsin, and Nebraska have strict laws that prohibit employers from accessing their employees’ social media accounts.
However, the National Labor Relations Act allows employees to discuss these terms in their employment contract. Generally, an employees’ contract cannot be terminated for raising complaints about work conditions on social media.
Evidently, employee privacy laws are quite vague. Therefore, both employers and employees should always observe caution. While employers are eager to monitor employee performance and control costs, they should be versed with legal consequences and their effect on workplace culture and employee morale.
Information security specialist, currently working as risk infrastructure specialist & investigator.
15 years of experience in risk and control process, security audit support, business continuity design and support, workgroup management and information security standards.