From computer keystroke tracking to GPS tracking, there are a variety of employee monitoring apps that can be used to keep tabs on employees’ productivity, behavior, and even physical location.
Companies monitor their employees for various reasons, such as ensuring productivity, preventing theft or fraud, complying with US labor laws and regulations, and more. However, the practice also raises serious concerns over privacy and ethics. Moreover, there is a question of whether or not such monitoring is legal in the United States.
Below, I will explore the legal and ethical implications of using employee monitoring software, as well as the various challenges that businesses face when implementing these techniques. I will also take a closer look at the limits of monitoring employees and examine how far employers can go in monitoring employees without violating their rights to privacy.
In this article, I will go through:
- What is Employee Monitoring?
- Is Employee Monitoring Legal in the United States?
- 5 Times Employee Monitoring Went Too Far
- How Should Companies Use Employee Monitoring Software?
What is Employee Monitoring?
Employee monitoring broadly refers to the process of tracking the activities and behavior of employees in the workplace, during work hours, or both. This can include monitoring their computer usage, email and instant messaging, internet activity, calls, physical location, productivity level, and more.
Companies use different tools to track and monitor their employees. They can use surveillance cameras, GPS devices, keycards, and the like. However, many businesses have also started using employee monitoring software, which is what this article will be focusing on.
Typically, employee tracking apps can track keystrokes, record employees’ computer screens, log website visits, measure mouse and keyboard activity levels, and more. These apps also often have mobile versions that can be installed on company devices as well as personal devices.
What Do Employee Monitoring Apps Do?
These apps monitor employees in different ways, including:
- Time tracking: Employee tracking apps can measure the amount of time an employee spends working on a computer or mobile device.
- Website and app usage monitoring: Managers will be able to look into an employee’s internet usage, such as the websites visited and the time spent on each website. These apps can also track the applications an employee uses during work hours.
- Location tracking: When an employee monitoring app is installed on an employee’s mobile phone, it can track the employee’s location using GPS technology.
- Keystroke logging: These apps can record all the keystrokes made by an employee on a computer or phone. This can help gauge the employee’s level of activity.
- Screen monitoring: These apps can also take screenshots of an employee’s computer screen at random or at regular intervals.
Why Do Employers Monitor Employees?
There are many reasons when employee monitoring might be necessary. It could be to monitor productivity, keep track of employee performance, or enhance company security.
- Productivity: Employers monitor employees to ensure they are working efficiently and completing tasks in a timely manner. Tracking time can also help teams identify how they should be spending their time at work for better results.
- Performance: Employers use monitoring software to track employee performance and identify areas where employees may need additional training or support. The software can also help employees stay on track and eliminate distractions.
- Compliance: With the help of employee monitoring software, employers will be able to accurately track employee hours worked and keep secure records. This will help ensure that the company is following legal requirements.
- Security: When employers monitor employees, they can help protect sensitive company information and prevent data breaches. It can also protect the company against theft.
- Employee Protection: Having a record of employees’ whereabouts during work hours can increase employee security. This is especially important for employees who work alone or work in dangerous locations.
- Transparency: Monitoring employees can help provide transparency and accountability to clients, stakeholders, investors, and the employees themselves.
Is Employee Monitoring Legal in the United States?
Yes, companies can legally monitor their employees in the United States. However, employers must comply with federal and state laws that regulate employee privacy and data collection. Otherwise, they’ll run the risk of time tracking-related legal issues.
In many cases and states, employers must inform employees if monitoring is taking place, and must have a legitimate business reason for conducting the monitoring. Some states also have specific laws regarding employee monitoring, so employers should consult with legal counsel to ensure compliance.
The Electronic Communications Privacy Act of 1986
The Electronic Communications Privacy Act (ECPA) allows employers to monitor their employees’ verbal and written communications, but only if two conditions are met:
- Under the first condition, employers can legally monitor employee communications as long as there is a legitimate business purpose for it.
- Under the second condition, employers can legally monitor employee communications as long as they have their employees’ express consent. However, in this case, employers are not limited to only monitoring business communications. This means that employers will also be able to legally monitor personal communications if the employees consent.
There’s also an important distinction that employers have to be aware of when it comes to monitoring employee emails. Courts have found that viewing an employee’s stored emails is like rifling through that employee’s personal files. However, employers can view emails during transmission without violating the ECPA.
It’s also important to note that according to the ECPA, employers must stop listening to employee phone calls if the nature of the conversation is private.
The Fair Labor Standards Act of 1938
The Fair Labor Standards Act (FLSA) also doesn’t prohibit employers from monitoring their employees. In fact, employee monitoring apps can help employers stay compliant with the FLSA as well as help employees ensure that they are being paid fairly.
This is because these apps come with time tracking features that track and record employee work hours. Companies will then be able to keep accurate records of the number of hours that employees work, in accordance with FLSA recordkeeping requirements.
National Labor Relations Act of 1935
The National Labor Relations Act (NLRA) prohibits employers from monitoring union activities, including any union activities that occur outside of work hours. Employers also cannot legally monitor or spy on non-union activities in which employees gather to discuss anything about their employment.
In October 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo announced her intention to protect employees from intrusive or abusive electronic monitoring and automated management practices.
According to Abruzzo’s memo, she was concerned that employers could use these technologies to interfere with employees’ Section 7 rights, which protect employees’ right to organize and bargain collectively. She is urging the NLRB to adopt a new framework for protecting employees from employers’ abuse of technology.
Under this new framework, an employer would be presumed to have violated the NLRA if its surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.
Biometric Information Privacy Act of 2008
The Biometric Information Privacy Act (BIPA) is a law in Illinois that gives individuals control over their biometric data. The law requires companies to obtain written consent before collecting or storing biometric data and to inform individuals about how the data will be used. BIPA also prohibits companies from selling or profiting from biometric data.
BIPA is considered to be one of the most protective biometric privacy laws in the US and is thus important for the following reasons:
- Biometric data is unique and cannot be changed. This makes it a valuable target for identity theft and other crimes.
- Biometric data is often used in facial recognition technology, which has been shown to be inaccurate and harmful, especially for women and people of color.
5 Times Employee Monitoring Went Too Far
In recent years, there has been a growing trend of employers using technology to monitor their employees. This monitoring can take many forms, including tracking employee movements, monitoring employee emails and internet usage, and even using facial recognition software to identify employees.
While some employers argue that this monitoring is necessary to protect their businesses, others worry that it is an invasion of privacy. In some cases, employee monitoring has even led to legal challenges.
Below, I will explore five examples of times when employee monitoring went too far. These examples show how employers can sometimes cross the line between legitimate monitoring and illegal surveillance.
1. Google’s Alleged Union-Busting
In 2019, Google employees accused the company of using a Chrome extension to possibly spy on union activities. A Google employee memo detailed how the Chrome extension, which was an otherwise ordinary calendar program, automatically reported events that included more than 100 participants or uses more than 10 rooms.
This has been interpreted by some employees as a way for Google to spy on union activity. Google insists that the tool is simply a way to prevent spam, but the controversy highlights the challenges of workplace surveillance in the digital age.
The NLRA prohibits employers from spying on employee organizing activity, but the definition of “spying” can be ambiguous in the context of electronic surveillance. In the past, spying might have meant a manager lurking outside a possible union meeting, but today employers can track everything from emails, chats, and calendars to Wi-Fi usage and tone of voice.
In the case of Google, it may be difficult to prove that the calendar tool was installed with the specific intent of spying on union activity. However, the NLRA also prohibits employers from creating the “impression” that they are spying on employee organizing activity. This means that even if Google’s intentions were not malicious, the calendar tool could still violate the NLRA if it leads employees to believe that they are being monitored.
The Google controversy is a reminder of the challenges of workplace surveillance in the digital age. As employers become more reliant on electronic monitoring, it is important to ensure that these tools are not used to violate employee rights.
2. Illinois Sandwich Shop’s BIPA Violation
Pret a Manger, a sandwich shop in Illinois, has agreed to pay $677,000 to settle a class-action lawsuit alleging that the company violated Illinois’ BIPA by collecting and storing the fingerprints of nearly 800 employees without their consent.
BIPA is a state law that requires companies to obtain written consent from employees before collecting their biometric data, such as fingerprints or facial scans. The law also requires companies to disclose how they will use and store biometric data, and to destroy it when it is no longer needed.
In the Pret a Manger case, the plaintiffs alleged that the company failed to obtain their consent before requiring them to use a fingerprint time clock. They also alleged that Pret a Manger did not provide them with any information about how the company would use or store their fingerprint data.
As part of the settlement, Pret a Manger has agreed to pay $677,000 to the class of employees. The company has also agreed to change its policies and procedures to comply with BIPA.
This settlement is a reminder of the importance of complying with BIPA. Companies that collect biometric data from employees in Illinois need to make sure that they are obtaining consent and following the other requirements of the law.
3. Arias v. Intermex Wire Transfer: 24/7 Employee Tracking
Arias v. Intermex Wire Transfer was a case in which a California employee sued her employer for installing a GPS tracking app on her smartphone. The app allowed the company to track the employee’s whereabouts 24/7, including when she was off duty. The employee argued that this was a violation of her privacy rights.
The case settled out of court, but it is one of the first cases to challenge the legality of GPS tracking of employee smartphones. The case is significant because it could have implications for other employers who use GPS-tracking technology to monitor their employees.
4. McDonald’s Secretly Surveils the Fight for $15 Movement
In 2021, McDonald’s was accused of secretly surveilling workers who were involved in the Fight for $15 labor movement, according to a report by Vice. The company allegedly used social media monitoring tools and fake Facebook personas to track the activities of activists and reconstruct their social networks.
McDonald’s says that the surveillance is necessary to “identify any potential safety threats” that could pose harm to its employees, franchisees, and customers. However, labor experts say that the surveillance is illegal and a violation of federal labor law.
5. Topgolf’s BIPA Violations
Topgolf was sued by a class of former employees for violating BIPA by collecting and disclosing their biometric data without their consent. The lawsuit alleged that Topgolf violated BIPA in three ways:
- Collecting biometric fingerprint identifiers and information without obtaining informed written consent as per BIPA
- Possessing biometric data with no publicly available data retention schedule and destruction policy
- Disclosing biometric data to a third-party timekeeping vendor without consent
Topgolf denied the allegations but agreed to a $2,633,400 settlement agreement with the plaintiffs. The settlement award will be distributed among more than 2,600 class members and amounts to $990 per person.
How Should Companies Use Employee Monitoring Software?
The software can provide valuable insights into employee productivity, operations, and security. However, companies need to use this tool responsibly and ethically. By following the guidelines for the best monitoring and time tracking practices below, companies can effectively utilize this software while maintaining a positive and respectful work environment.
Open Communication
Clearly communicate with employees about the monitoring software and its purpose. Explain how it benefits their work and the company’s performance.
Transparency
Be transparent about the monitoring process and data collected. It’s important to explain to your employees how the information from the monitoring apps is being used. Furthermore, make sure that you set clear guidelines and policies for using the monitoring software. Additionally, employees should be aware of what types of activities are monitored to avoid any misunderstandings.
Using Data
Collect only necessary data and use the monitoring software to track work-related activities only. It’s crucial to collect data that is relevant to the employee’s job performance and not to collect more data than needed. Make sure that you don’t use the software to monitor their personal activities.
Instead, use the data collected to improve the employee’s performance and help the business grow as well as identify areas where employees need more training or support.
Final Thoughts
I can confidently say that employee monitoring software is a valuable tool for any company to have. It allows employers to track the progress of employees and ensure that everyone is staying on task. However, it is important to remember that there is a fine line between monitoring and invading privacy. Companies should strive to manage the need for information while also keeping good boundaries with employees.
Ultimately, the key to successfully monitoring employees is communication and transparency. By openly discussing the use of monitoring software, companies can help to alleviate any concerns employees may have and ensure that everyone is on the same page.
