Is Electronic Productivity Monitoring Putting Your Business at Risk?

The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.
When “shelter in place” and “stay at home” orders swept the nation in response to the COVID-19 pandemic, employers scrambled to set up remote work arrangements for employees who could perform their jobs from home. Now, as these employers continue to manage an unprecedented volume of remote workers, one question on many employers’ minds is: are my employees actually working?
Productivity monitoring software is the familiar product which answers that question.  And sales are apparently skyrocketing. Employers should be mindful, however, of the significant legal risks in using programs that capture screenshots, keystrokes, and web pages visited, or show how long an employee spent on social media. Expanding the use of these programs to monitor employees working at home on personal computers, instead of in the office using company equipment, exposes employers to several legal pitfalls, including:
1.      Many states have privacy laws that employers will need to consider before implementing employee monitoring programs. For example, Connecticut employers must provide written notice to employees who will be affected by electronic monitoring.  Delaware employers that monitor telephone calls, email, or internet use, may be required to notify employees by written or electronic means each time the employee accesses the employer’s electronic resources. Failure to follow these and similar state laws could lead to legal liability.
2.      Productivity monitoring programs installed on employees’ personal work-from-home computers may inadvertently collect personal and private employee information, or even such information about employees’ family members. For example, a monitoring program may take a screenshot when the employee is entering personal health-related data into her health care provider’s online portal. Without even realizing it, an employer may amass information through productivity software that reveals their employees’ previously unknown membership in a protected class, protectable health information, or private emails not meant for their employer’s eyes.
3.      Monitoring software that records employees’ images or voices, such as when an employee is videoconferencing, can implicate state wiretapping laws. Recording any portion of an employee’s video conference without the explicit consent of one or both parties being monitored (depending on whether the state requires single-party and two-party-consent for recordings) could potentially violate these laws.
The collection of this information may seem harmless. Employers may feel they can still make employment decisions without taking such information into account. But, especially in those states with monitoring notification requirements, employers may incur risks just having the information at their disposal.
In order to avoid these legal traps, employers wishing to ensure remote employees are actually working should implement certain procedures to protect themselves. Some suggested first steps include:
  • Become familiar with the numerous privacy and surveillance laws in the jurisdictions where your business operates. Legal counsel can help you identify and navigate the risks involved with utilizing monitoring software.
  • Establish agreed-upon working hours and policies requiring employees to be working during their scheduled times. Consider allowing employees with irregular working schedules the ability to “turn off” monitoring during non-working times.
  • Advise employees in writing about electronic monitoring that will be done during working times and emphasize that they should have no expectation of privacy during that time as their work can and will be monitored.
  • Establish policies to avoid capturing private, personal information, and/or enable the collector to erase/destroy it if captured.
  • Establish procedures about how to handle the collected information. For example, determine who has access to the information captured, how it is stored, and how inadvertently collected personal and private information will be treated.
Finally, employers should certainly be cautious before taking any adverse employment action based on “personal” information collected through such monitoring programs. Speaking with competent employment counsel before taking any such action is recommended in order to best protect the business.