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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2023, authored by attorney Shelby Howlett. The series was featured in Arkansas Business.
Technology has revolutionized every aspect of the modern workplace, including how companies look after their employees.
According to the Wall Street Journal, nearly 80% of major United States employers are using some type of employee surveillance technology to monitor issues such as employee productivity, on-the-job safety, workplace misconduct and more. Some methods of surveillance include email and computer monitoring, logging key strokes, audio or video recording, and taking snapshots of an employee’s computer screen or workspace in given intervals.
While employee surveillance is becoming more commonplace, there are legal and ethical duties an employer should keep in mind when using this technology. This article addresses several of the issues employers should consider when deciding how and when to monitor their employees.
It is well established that private-sector employees generally do not have a reasonable expectation of privacy with respect to their actions at an employer’s workplace or when using company equipment. Indeed, under the federal Electronic Communications Privacy Act, private employers have the right to monitor employees while they perform work, and employers can monitor employee activity on company-owned devices or electronic systems.
Federal law does not require that companies give notice or gain employee consent before monitoring an employee. However, some states have requirements for notice or consent, and it is likely that more states will follow suit as this technology advances. Therefore, before monitoring employees, companies should consult an attorney to determine the workplace surveillance laws in each state in which their employees work.
Employers should also consider how employee surveillance technology impacts their compliance with other labor and employment laws. For example, in October 2022, the National Labor Relations Board’s (NLRB) general counsel, Jennifer Abruzzo, released a memorandum in which she urged the NLRB to adopt a new framework that holds employers accountable for the use of “omnipresent surveillance and other algorithmic-management tools.”
According to Abruzzo, some forms of technology surveillance may violate employees’ rights to engage in protected activity under the National Labor Relations Act (even in a non-union setting), and her proposed framework would render such forms of surveillance illegal. For example, constant monitoring could be considered an action that discourages employees from discussing terms and conditions of their employment with each other, which would violate the NLRA.
As remote work increases, it is likely that federal agencies will release more guidance related to surveillance technology, and employers should seek legal help to determine if their surveillance practices comply with federal laws and guidelines.
Aside from the legal implications, employers should also think about the impact surveillance has on company culture and employee morale. Employers should be mindful in creating a monitoring policy and implementing it in a way that maintains employee trust. Before monitoring begins, the company should establish a written policy describing the type of monitoring that will be used and how and when it will be implemented.
And although not legally required in most states, as a best practice, employers should be transparent with employees and give prior notice about using monitoring technology. Further, employers should also have employees sign an acknowledgement form to document that employees were given notice and that they do not have a reasonable expectation of privacy relating to their conduct at work or when using company equipment.
Finally, surveillance should be narrowly tailored for legitimate business purposes and not be used in a way that leaves employees feeling that their every move is being scrutinized.
Companies have a legitimate interest in monitoring employees’ attendance, conduct and productivity. Surveillance technology is immensely helpful at meeting this need — especially as more and more companies allow employees to work remotely.
While this technology is useful, employers must stay up to date on the applicable laws in the countries and states in which their employees work and continue to evaluate the impact employee surveillance may have on workplace morale.