Can I Track an Employee’s Computer Activity?

There is impressive software, programs, and technology to track employee activity, movement, and productivity. You can track your employees down to the keystroke with the right people and technology if you want to. You can tell how often employees touch their keypads, how many words per minute they type, what they print, and how frequently they pause. You can track IP addresses and GPS locations to know where employees work. You can even use laptop cameras to take photos of employees. You can monitor internet activities and search history. By some estimates, more than 60% of employers use some form of employee monitoring software. 

But you need to pause before you electronically monitor your employees.  If you cross legal lines, your employees could have a significant lawsuit against you. You could even face criminal charges.

You should also pause to consider the potentially negative impact on employee morale. Nothing can destroy a positive work culture quicker than finding out an employer has Orwellian tendencies.  

Here are a few issues you should consider before you implement employee monitoring.

Federal and State Laws

Under federal law, the Electronic Communications Privacy Act allows companies to monitor oral and electronic communications if they have a legitimate business purpose or obtain employee consent. What constitutes a legitimate business purpose is a fact-sensitive question that should be analyzed with your counsel in the context of your industry or issue. Under the National Labor Relations Act, which protects employee rights to unionize and organize in the private sector, if you have a unionized workforce, you should obtain the union’s consent before you monitor employees.

There are state laws to consider, too. Several states, including Connecticut and New York, have passed laws requiring employers to provide notice of workplace monitoring. Some states, like California, appear poised to pass GDPR-type laws. The GDPR is an impactful European Union law that imposes strict obligations and creates massive financial liability for companies collecting data on people within the European Union. 

Notification to Employees of Monitoring Activities 

Because of the federal and state laws implicated in monitoring employee activities, it’s generally wise to obtain employee consent and provide written notice before collecting data or monitoring activities. In some states, like New York and Connecticut, it is required. Plus, obtaining consent and giving notice is the right thing to do.

The Impact of Monitoring on Company Culture and Public Relations

Before you start digitally hovering over your employees, you must consider the impact monitoring could have on company culture and public relations.

If you engage in routine monitoring of employees, your employees will eventually find out. It will erode trust. I have seen it breed paranoia. Your employees may become more focused on looking busy than being productive. The internet is brimming with ways for remote employees to look busy and deceive electronic monitoring software. For instance, employees can buy a “mouse-jiggler” that moves their mouse to prevent their laptop from going into sleep mode when not working. 

The Front Page Rule

Electronic employee tracking and monitoring could impact your company’s image and recruitment. If there’s a chance your monitoring activities would be seen as creepy, then you shouldn’t do it. I call this “The Front Page Rule.” In other words, would you be embarrassed if your electronic monitoring strategies and practices were published on the front page of your local newspaper? If so, don’t do it.

Laptop Cameras

Some companies have used laptop cameras to photograph remote employees to confirm they are working. For me, this is going too far. There are potential privacy issues if the employee is not adequately clothed (it happens) or if family members or medications are spotted in the background. Your remote employee is not inviting you to look into their home (especially if you’re a government employer because that could raise constitutional issues). So don’t go into your remote employee’s home uninvited. Photographing your employees at unexpected times will negatively impact your ability to retain and recruit quality employees, destroy trust, and create liability risks. 

Conclusion

If you obtain employee consent, provide proper written notice, only use monitoring technology for legitimate business purposes, and regularly check for new privacy and data laws, you will mitigate many of your risks with employee tracking. Some impressive software programs can legitimately track activity without making your employees uncomfortable. In some industries, there is no doubt that robust tracking is necessary and appropriate. In others, however, employers may be taking on an unreasonable level of risk by engaging in overly expansive electronic monitoring activities. 

The electronic monitoring programs can be powerful tools against lawsuits. For example, in one lawsuit, a remote employee sued her employer for wages claiming she worked more hours than she was paid. The company used employee monitoring programs to prove she worked less, not more. Even though the employee claimed the data was misleading because she printed off materials and reviewed them in a way that would not have been tracked, the company disproved her claim by showing she had printed very little. Ultimately, the employee lost her claim, and the court ordered her to pay the company for fraudulently entering her time. 

Employee monitoring software can also help with other legal issues, like preventing and investigating harassment and discrimination. Despite the potential value, employers should proceed with caution. There are federal and state laws to consider. There are potentially severe impacts on company culture and public relations. So, if you engage in employee monitoring, provide written notice to your employees on how, when, and why monitoring will be used on the job. Avoid monitoring employees when they are outside normal work hours.

Remember that whatever data you monitor and store will likely be requested if there is a lawsuit. In other words, be careful with what and how much you collect. Data storage can be expensive. Plus, you might have to turn it over in a lawsuit. And don’t forget that this is an area where technology and the law are evolving. Be prepared to pivot as the law and technology evolve.