Many people operate under the assumption that businesses may monitor their activity online or while using personal mobile devices. They may also be aware that their employers are likely to monitor them while they are on the job.
The rise of “bossware” in recent years has created a very challenging workplace environment. Employers may engage in a number of tactics to monitor workers and build cases against them. Workers need to understand what their employers can and cannot do when attempting to monitor their workplace conduct.
What tactics are common?
Employers may use a variety of different electronic systems and specialized programs to monitor their workers. These include, but are not limited to:
- Keystroke logging software
- Screenshots
- Installing GPS in devices and vehicles
- Assessing Slack and Team conversations
There are both state and federal rules in place to protect people from invasions of their privacy. The federal Electronic Communications Privacy Act of 1986 (ECPA) prohibits unauthorized interception of electronic communications.
However, employers can often bypass the ECPA by including clauses in employment contracts advising workers that any communications or activity on company-provided mobile phones, tablets or laptops may be subject to monitoring.
Of course, they must also comply with state-level statutes. Those differ in every jurisdiction. In Pennsylvania and Delaware, every party involved in a conversation must provide their consent.
In Michigan, consent is necessary if the party recording is not an active participant in the conversation. In Connecticut, consent from all parties is necessary to record phone calls, but only one party’s consent is necessary to record in-person conversations. In West Virginia, Colorado, New York and New Jersey, only one party involved in a conversation must consent to recording.
Using a personal device can sometimes help bypass flagrant privacy invasion, but employers may still require that workers install apps that track their location or record other critical usage data. Employers often retain data for months or even years, allowing them to go back over conversations long after they occurred to look for excuses to discipline or terminate workers.
Employer monitoring of direct communications between workers can have a chilling effect on activities involved with organizing with coworkers. Blanket, always-on monitoring creates serious privacy issues, especially if workers must carry their devices during their lunch breaks or while off duty. Those who speak up about their concerns might face retaliation, even if they are technically whistleblowers reporting conduct that violates state or federal statutes.
Employers must provide clear notice about their recording and monitoring activities. They should use the least intrusive tools possible. They also likely need to provide deletion timelines to affirm how long they retain data.
Employees forced to use company software or devices are at especially high risk. Employees who suspect that they are subject to inappropriate monitoring or who face workplace consequences due to allegations related to monitoring activity may need to consult with an employment attorney. Reviewing company practices and any punishment or retaliation that has occurred with a skilled legal team can help employees understand and assert their workplace privacy rights.