With about 33% of American employees working remotely due to the COVID-19 pandemic, many employers are tracking the productivity of work from home employees. Some companies are using the same monitoring tools they already used at the office, while others have put new ones in place. Either way, you may have concerns about the legality of these surveillance practices.
Are employers allowed to spy on the online activity of remote employees? As with many legal questions, the answer is “it depends.”
What is monitoring technology?
The most common approaches to employee monitoring include tracking internet use, accessing emails, geolocating company-provided phones and vehicles, and utilizing video surveillance.
The spy software available to employers can be invasive. It includes keystroke loggers (which record everything you type), applications that send videos of your screen activity to employers, and programs that use your own webcam to watch you.
With the pandemic making work-from-home the new normal, employee monitoring technology has entered new territory and the law has yet to catch up. Even in the workplace, the legality of these technologies varies significantly from one jurisdiction to the next. It typically depends on where you are, what exactly the employer is doing, and whether you consented to it.
What are they monitoring: work or personal information?
Email monitoring is common, but the account you use can impact your rights to privacy.
You should assume that emails sent from your company email account are not private, even if you send them from your own device while working from home. In contrast, even when you’re physically at work and using a company-owned computer, your employer’s right to monitor emails you send through a personal account may be much more limited.
The difference comes from federal law. The Electronic Communications Privacy Act prohibits the monitoring of “wire” (telephone), spoken, and electronic communications, with some exceptions. One exception is when the employer provides the communication service. Generally, if the employer provided the email account, has a policy that says they can read employee email, and there’s a legitimate business reason to monitor, then they can do so.
If the employer didn’t provide it, however, that exception doesn’t apply. In a Maryland case, after a resigning employee returned her company phone, the company used it to access her personal Gmail account. She sued, and the court rejected the company’s argument that it had the right to review personal emails accessed through a work phone.
The state Supreme Court of New Jersey ruled similarly in a case involving an employee who exchanged emails with her attorney using a personal email account on her work computer. Not only did the court deem the company’s employee surveillance policies vague and unenforceable, it stated that company attorneys had committed a breach of ethics by reading the messages.
This company was using spy software that saved screenshots of every webpage employees visited, but the court’s reasoning would likely apply to keystroke loggers and other technology that gives employers access to personal communications too.
Where are you being monitored?
Cameras in your workplace? As long as they’re not in private areas like bathrooms, probably legal. Recording calls made on your office phone? In most states, that’s fine too. When you’re working from home, though, different rules may apply.
You generally have far more privacy rights at home than on someone else’s property. In addition, many workers live in a different state than they work. In New York it’s legal to record phone calls without telling other participants, but if an employee is working from home in Connecticut, doing that could get the employer sued. If they’re in Pennsylvania, it’s actually a felony.
Did you consent?
With a few exceptions, your consent is the key to the legality of employee monitoring. That’s why consent prompts and employer policies matter.
If you click yes, sign a policy, or are even just aware of the policy and continue working there, courts may find that you consented to surveillance. For that reason, the best thing you can do to protect your privacy is to never use employer-owned devices or work email accounts for personal conversations.
We’ve entered a new frontier. Some employees have reported being threatened with dismissal unless they consented to invasive monitoring, such as the installation of spy software on their personal computers. Whether that’s legal is something courts have yet to rule on, and with the pandemic disrupting their operations, they may not get the chance to until stay-at-home orders are lifted.