January 2018

How much employee monitoring is too much?

In a time where anyone can look up anyone online, “privacy” has a very different meaning. It is not just that an employer can look for your social profiles; legally, employers have the right to monitor their employees. But from a privacy respective, many of us wonder: has employee monitoring gone too far?

Generally, large companies are more likely to check on their employees than smaller ones. According to a study done by the American Management Association, 80 percent of major companies monitor the internet usage, phone and email of their employees. In particular, companies in the financial industry are more vigilant.

Before the invention of activity-tracking gadgets like Fitbit and monitoring apps for employees such as Xnspy, the footsteps of employees were counted. For instance, in the medical industry, employers used tape measures to gauge how far nurses walked in their daily rounds. In today’s digital age, keystrokes and similar applications tell supervisors when a keyboard has been idle for more than 15 minutes. Security badges and fingerprint scanners can track hours, and GPS can monitor locations.

Small businesses are using Xnspy and similar employee monitoring applications to track things like:

  • Internet use
  • Software downloads
  • Files stored on the office computer
  • Anything displayed on the computer screen
  • How long a computer remains idle
  • How many keystrokes are typed per hour
  • Emails sent or received from the work email address

And a lot more. And all of this is legal.

Employees are provided with office equipment (cellphones and laptops) that already have Xnspy installed.

It’s clear that employers can monitor anything an employee is doing during the work hours, but the question is how much of that is legal? Well, the laws vary from state to state.

Federal law allows employers to monitor their employees as they perform their duties. But Lewis Maltby, president of the National Workrights Institute, says that where employees are being monitored matters. If an employer wants to place a microphone in the office to listen to workers all day, that is legal. But it is not legal to place a microphone in the cafeteria, where people may be talking about personal issues. Similarly, it’s not legal to place monitoring devices in locker rooms and bathrooms.

Laws regarding workplace surveillance mostly revolve around consent issues. Legal experts recommend that organizations notify their employees of the monitoring and get a written confirmation of consent.

The Electronic Communications Privacy Act of 1986 (ECPA) and the common law protections against invasion of privacy have put some restrictions on workplace monitoring.

The ECPA prohibits an employer from intentionally intercepting the oral, wire and electronic communication of employees. There are several exceptions to this, and two of them concern employers. One is the ‘Business Purpose Exception,’ which permits the employer to monitor oral and electronic communications as long as it shows that it was done for legitimate business reasons. The second is the ‘Consent Exception,’ which allows employers to monitor communications using monitoring apps for employees and other means.

A violation of ECPA compliance can result in civil as well as criminal penalties.

Here is a sampling of how the laws in different states limit employers:

California

  • 435. (a) No employer is allowed to make audio or video recording of an employee in the locker room, restroom or any room designated for changing clothes, unless authorized by the court. (b) Violation of this section is considered an infraction.

New York

  • 203-c: NY Code – Section 203-C: Employee privacy protection
  1. No employer is allowed to make a video recording of an employee in the restroom, locker room or a room where employees change their clothes, unless authorized by the court.
  2. No video recording that violates this section is permissible to be used by an employer (no matter what the purpose).
  3. In case of a civil violation of this section (a) the employer must award damages and reasonable attorney’s fees and costs to the plaintiff, and (b) afford injunctive relief against any employer that commits or proposes to commit a violation of this section.

West Virginia

  • 21-3-20. Electronic surveillance; Use prohibited in certain areas; Penalty for violations
  • It is not permissible for an employer, agent or representative of an employee (public or private) to operate any electronic surveillance device or system for monitoring or recording the activities of employees in a locker room, shower room or rest room.
  • An employer or agent who violates any such provision is guilty of a misdemeanor and if convicted shall be fined $500 for the first offence, $1000 for the second and $2000 for the third or any subsequent offence.

In general, companies intending to monitor their employees must share legal documents at the time of hiring and get their consent in order to avoid future ambiguities.

Hannah George blogs about tech news, trends, new apps and related topics with a particular interest in wearables and exercise tech.

This article originally appeared in Law Technology Today

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