The legal aspects of employee monitoring

The legal aspects of employee monitoring

Federal laws and state privacy laws in the USA generally allow employers a great deal of leeway in defining the extent of their employee monitoring programs. Some state and local laws require employee consent, yet most don’t require companies to inform employees they are being monitored at all.

When specifically talking about electronic monitoring, some states, including Connecticut and Delaware, prohibit employers from monitoring workers without prior notice. The federal Electronic Communications Privacy Act (ECPA) supports two cases for employee monitoring:

  • Legitimate business purpose – this allows companies to monitor employees’ electronic communications if it has a “legitimate business purpose” for monitoring
  • Prior employee consent – employers also may monitor workplace communications if they have obtained prior employee consent―usually done during the employee onboarding process as part of standard paperwork completed on the first day

Even with consent however, litigation can still occur. Today, most employee-initiated monitoring lawsuits are associated with terminations due to misuse of company-owned cars and smartphones. As monitoring technologies continue to develop though, there may be a rise in litigation around employers’ use of advanced technologies such as drones or other yet-to-be-developed devices.

How employers can protect themselves from a legal standpoint

Tom Wulffson, a partner at the law firm Carothers DiSante & Freudenberger in California, represents companies in employee monitoring cases. He recommends that companies follow these guidelines to ensure that they are on the right side of employee privacy when using employee monitoring:

  1. Always disclose any monitoring to your employees
  2. Define a legitimate business interest for monitoring
  3. Do a cost-benefit analysis comparing the GPS tracking of company-provided smartphones with the data you expect to yield by tracking that device
  4. Ensure that all monitoring is consistent across all employees, and that it’s carried out by trained and trusted staff or third-party vendors

The takeaway? When implementing an employee monitoring program for your company, it’s always best to research how the laws in your area apply and get employee consent whenever required.