Over the past year, many companies had to transition to remote working. That being said, with most of the workforce at home or working remotely, it has become increasingly difficult to monitor employee behavior. Beyond this challenge, there remains a question of whether employers can legally monitor their employees while they are working from their homes due to the pandemic. Whether some or all of your workforce is working remotely, here’s everything you need to know when it comes to employee monitoring — from defining the parameters of monitoring to ensuring employers remain compliant.
Can Employers Monitor Employees Who Are Working from Home?
The short answer is yes. When done legally, employers can monitor their employees while they work from home. As it turns out, there are numerous reasons why employers would want to monitor their employees remotely. First and foremost is to protect the company from potential lawsuits. In the office, everyone is on the same network and employee activities can be easily monitored. With so many employees working remotely, companies need to take steps to ensure their reputations will not be negatively affected by inappropriate employee behavior during work hours.
Another major reason for monitoring is to protect company property from malware and cyber-attacks. Most employees working from home are using company hardware and software. So, employers can install surveillance applications or programs on these devices to both monitor employee productivity and decrease the likelihood of data leaks and cyber-attacks.
Beyond legal and safety concerns, many employers just want to make sure employees are doing what they are supposed to be doing during work hours, especially while using company property. By installing surveillance apps or programs, employers can see if non-work-related programs are being used or downloaded on company property. It also allows them insight as to whether or not the employee is neglecting their tasks for long periods of time without notifying a manager or supervisor.
What Are Employers Monitoring?
Through these surveillance programs, employers are able to monitor employee location based on GPS and IP address, record internet activity, noting which employees access certain files and when, measuring a computer’s idle time and how long programs have been open, and even what an employee types. All of these measures are taken to protect company property and monitor productivity. But where does the line end for employee monitoring while they are working from home? How can employers make sure they are not violating their employees’ right to privacy while also keeping their company safe and productivity high? Workplace monitoring, including remotely, is subject to both federal and state laws regarding employee privacy and when, or if, they need to be notified of the monitoring.
How Can Employers Stay Compliant While Monitoring Employees Remotely?
From a legal perspective, most human resource professionals recommend disclosing surveillance tactics to your employees. Informing employees of monitoring will remove any expectation of privacy and they are more likely to pay close attention to what they’re doing while using company property working remotely. Notifying employees also helps to maintain trust between employees and employers.
Employers looking to use any type of monitoring software need to make sure they are in compliance with both federal and state regulations regarding the monitoring of employees. The main federal law that protects employee privacy is the Electronic Communications Privacy Act (ECPA). The ECPA makes it illegal to intentionally intercept, use, disclose, or otherwise obtain any wire, oral or electronic communication—which is established in the Wiretap Act. The ECPA also protects any stored data and information, as well as information pertaining to the location of where something is recorded. However, there are two exemptions to these regulations. First, a business can be allowed to monitor the electronic communication of employees if they have a legitimate business reason to do so. Second, if employers obtain written consent, such as a signed acknowledgement, from the employee, the employer is allowed to monitor the employee. The ECPA doesn’t protect stored information if that information is on the company’s own servers and equipment. Lastly, the ECPA does not have any guidelines around all types of employee monitoring, so there are some methods, such as keystroke logging (which is tracking what is being typed), which have limited to no protection under ECPA.
Certain states also have specific regulations regarding employee monitoring, so employers will need to check with their specific state of operations. Some states—such as Maryland, Illinois, and California—have “all-consent” or “two-way consent” laws that require everyone involved to consent to the monitoring. A few states—like Connecticut and Delaware—require employers to give notice to employees that they will be monitored before the monitoring begins.
What Should Employers Consider Prior to Using an Employee Monitoring Tool?
The first question to consider before deciding on whether to use a surveillance application or program, is why your business wants to use it. Employers should ask whether the purpose of the monitoring is to benefit, evaluate, or penalize employees. If the monitoring is to benefit them—for instance protecting their data and information—then employers should proceed with using a monitoring software.
If the purpose is to evaluate, employers should consider the negative impact monitoring may have on employee privacy and company morale. Part of this consideration should be investigating alternative ways to monitor productivity or performance and determining what type of information/data is needed to provide the desired insight. If evaluation is the goal, it is always a good idea to notify employees that their performance and progress will be monitored through a surveillance program on their company equipment. It’s also important that you provide clear guidelines and procedures for how company property should be used.
If the purpose of monitoring is to penalize employees, employers need to recognize that this type of surveillance could be potentially damaging to trust, morale, and productivity of their employees.
Beyond the consideration of overall purpose, employers should know that over-monitoring employees can be counterintuitive to the company’s employee monitoring goals. Morale and productivity could be harmed if employees feel less trusted and micromanaged. This could also erode trust between the employee and employer. Over-monitoring can also harm work-life balance for employees. Employees being monitored may feel as though they have to always be working, and may feel guilty for taking a lunch break, or ending their day at a certain time in the evening.1 Additionally, employees are not robots, and it’s unrealistic to assume they will be at their computers every minute of the day working—even when in the office. The reality employers need to keep in mind is that personal, non-work actions are taken for short periods of time throughout the day, which actually help foster productivity by giving employees a quick mental break.
Overall, there are many factors to consider when deciding whether to implement an employee monitoring program. QBS and our team of human resource management professionals are here to help you decide whether this is a viable option for your business. From setting clear objectives to notifying employees, our experts will make sure you remain compliant with regulations and ensure that any policies and procedures in your employee handbook are updated so employees are given all the information they need.