Employer Monitoring and Surveillance of Employees in the Work-From-Home Setting

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Since early 2020, more employees are working from home than ever before. While increases to the remote workforce were driven primarily by pandemic-related mitigation measures, many organizations have seen a significant number of employees choose to remain working from home even after businesses and organization have embraced a return to the in-person work model. The necessity to work remotely for some time allowed both employers and employees to recognize the benefits and challenges of a remote workforce. To be successful in this new paradigm, employers search for ways to stay connected with employees to ensure professional growth and productivity. Similarly, employees strive to achieve a work-life balance and safeguard personal privacy while working from home. These oft-competing goals require a delicate balance and careful consideration of the impact of monitoring employee performance and productivity while maintaining organizational trust and protecting employee privacy.

How Employees Are Monitored

Improvements in technology have advanced a broad range of methods to monitor employees’ whereabouts and activities. Reliance on technology in our personal and professional lives makes monitoring activity relatively easy. There is an abundance of software applications and monitoring tools available to track employee activity in a variety of ways. Some common methods employers use to track employee activity include:

Cellular phones/telephone tapping: Employer-issued cellular phones may be equipped with tracking applications or supervision settings that enable employers to access device activity and location. In addition to ascertaining the location of the device, access may include email, text messages, contacts, photos and location settings. These applications may also restrict access to certain functions, downloads or sites that may be prohibited by company policy.
Video/webcam surveillance: Employer-issued laptops, tablets, or other workstation devices may be equipped with webcams that can be activated and deactivated remotely by employers to monitor employee activity.
Computer monitoring: Other forms of computer monitoring include keystroke monitoring, application use, internet and social media activity, accessing stored files, and email monitoring.
GPS/location tracking: Employers may track activity of company owned vehicles through GPS or other location or vehicle monitoring platforms.

Why Employers Monitor Employees

The primary reason for monitoring employees is productivity. Without the direct supervision that exists in the traditional work environment, employers need a mechanism to evaluate how employees are spending their time. Remote monitoring can provide an employer with a snapshot of employee activity to ensure time is spent efficiently.

Another reason for monitoring is to ensure that organizational resources are used appropriately. Remote employees may connect company-owned devices to outside networks creating the potential for cybersecurity concerns. In other cases, employees may use company vehicles that require strict monitoring to ensure safety and restrict personal use.

Time and attendance monitoring of employees serves multiple purposes. Employers may monitor attendance for timekeeping and payroll purposes but also to prevent employee burnout. It is easy for remote employees to lose the structure of the traditional workday and find themselves always “on the clock,” which can be detrimental to the employee’s long-term performance and personal wellness.

Legal Considerations When Monitoring Employees in the Home Environment

Electronic privacy rights are regulated at both the federal and state level. At the federal level, the Electronic Communications Privacy Act of 1986 permits employers to monitor all employees’ verbal and written communication provided the employer can articulate a legitimate business reason for doing so.

In New Jersey, employers should be mindful of the invasion of privacy tort of “intrusion upon seclusion,” which provides the basis of a claim for “the intentional intrusion, physical or otherwise, upon the solitude or seclusion of another … if the intrusion would be highly offensive to a reasonable person.” In Friedman v. Martinez, 242 N.J. 449 (2020), the New Jersey Supreme Court held an intrusion may be established by circumstantial evidence and reasonable inferences drawn thereof. While monitoring employees in the workplace is commonplace, monitoring their activity within the privacy of their homes raises concerns about the intrusion upon seclusion analysis.

Electronic monitoring.

Most forms of employer electronic monitoring for productivity, such as key-stroke software or recording websites accessed by company equipment during working hours, are lawful. Employers must be cognizant of employees’ privacy rights in online password-protected accounts including social media, banking, shopping and other sites that may be accessed during working hours on the employer’s equipment. A written policy prohibiting accessing these sites during working hours may sufficiently insulate an employer should it inadvertently collect or record of this type of private information.

Location tracking.

The New Jersey Legislature enacted Assembly Bill No. 3950, which went into effect in April 2022, and requires that employers provide written notice to employees if the employer “knowingly makes use of a tracking device in a vehicle used by an employee” when that device is “designed or intended to be used for the sole purpose of tracking the movement of a vehicle, person, or device.” The law’s definition of “tracking device” supports a narrow reading that excludes devices capable of tracking an employee’s location but are not designed or intended to be used solely for tracking purposes. An employer-provided cellphone, therefore, would not meet the definition of a tracking device under the legislation even though it is possible for the employer to ascertain the location of the cellphone.

If an employer wishes to use geotracking devices such as a GPS, which does fall under the new law’s definition of a tracking device, i.e., designed for the sole purpose of tracking, the law requires employers to give written notice to employees that they will be tracked regardless of whether the vehicle to be tracked is owned by the employer or is the employee’s personal vehicle.

Surveillance.

Many employers in all sectors use video cameras in the workplace for security, theft prevention, and employee monitoring. In general, this is lawful provided employees are given written notice that they are subject to surveillance. On both the federal and state level, however, there are laws limiting video camera use in restrooms, breakrooms and other areas where “there is a reasonable expectation of privacy.” Also, federal wiretapping and labor laws make it unlawful to record certain oral communications and union activity, which is why surveillance cameras used in the workplace usually lack an audio component.

While monitoring employees’ productivity and whereabouts in the workplace has become somewhat normalized in the U.S. and elsewhere, actually watching them in real time working from home may be a step too far. In October 2022, a Dutch court ordered a Florida-based company to pay approximately $73,000 to an employee based in the Netherlands who was terminated for refusing to keep his webcam on during working hours while working from home. In its decision, the court held the requirement to be visible at all times within the confines of his home “is contrary to the employee’s right to respect for his private life” and that his dismissal was not legally valid. While this recent decision was issued overseas, it is predictable that a U.S. court could reach the same result, i.e., that employees have a reasonable expectation of privacy while in the privacy of their own homes.

Weighing the Pros And Cons of Monitoring Employees

Monitoring and surveillance of employee activity has advantages and disadvantages. Effective monitoring based upon clear policies can result in increased productivity, improved team performance, personnel cost savings, and increased cyber and information security.

While these benefits may seem attractive to employers, monitoring may have disadvantages as well. Employee surveillance can lead to mistrust and micromanaging. Cost benefits realized by monitoring can be offset by software and personnel expenses required to implement monitoring programs. If not implemented intentionally, with clear guidelines and notice to employees, monitoring can result in legal implications and risk of employee privacy violations.

Key Takeaways

Establish clear written policies for acceptable use of company resources and disclosure of monitoring programs.
Notify employees in advance when considering monitoring remote activity.
Carefully consider employee privacy and restrict monitoring to only company owned devices.
Do not monitor employee activity outside of scheduled work hours.
Carefully weigh the benefits of monitoring against the potential impact to organizational culture.
When in doubt about when and how to monitor employees, seek advice from counsel.

Kevin M. Craig is assistant vice president, safety, security and investigations at Porzio Compliance Services.

Melanie D. Lipomanis is counsel at Porzio, Bromberg & Newman and is a member of the litigation practice group.