Are Employees Working or Watching March Madness®? The Legal Implications of Employee Monitoring

This year, as employees nationwide settle in to enjoy the college basketball phenomenon that is March Madness®, many do not have to worry about pressing the “Boss Button” to feign productivity when a supervisor or colleague walks into their office. With many employees still working from home, they can simply press a button on the remote control instead and watch the games on their own TVs. Setting aside the question of whether employers should permit their employees to watch (during work hours) what many consider to be the best sporting event of the year (and setting aside my personal opinion on the matter), a related question arises—to what extent may employers engage in electronic monitoring to determine whether their remote employees are actually working?  

Today, more than ever, employers are looking to electronic monitoring tools for help with maintaining oversight over productivity, performance, and compliance with company policies, particularly with remote employees. Electronic monitoring can take many forms, including, but not limited to, reviewing employee emails, monitoring internet usage, tracking employee keystrokes, or video surveillance (e.g., recording of videoconference calls).

But with great power comes great responsibility. Electronic monitoring implicates a patchwork of federal and state laws that have the potential to land employers in “foul” trouble.
 

Federal and State Privacy Laws

To start, the federal Electronic Communications Privacy Act (“ECPA”) and state wiretapping and privacy laws prohibit persons, including employers, from intentionally intercepting certain electronic communications or accessing certain stored communications (e.g., unopened emails sitting in an inbox, Facebook posts) unless an exception applies. One exception employers may rely upon is consent. An employee’s specific and written consent to monitoring typically provides the best protection from liability. However, consent may also be implied.[1] Courts have found that when an employer has an explicit policy putting employees on actual notice that their work communications are not private and subject to monitoring, implied consent exists. That being said, there are also limitations on creating implied consent or making an employee consent to certain monitoring, which may vary by jurisdiction. For example, many states have passed laws prohibiting employers from asking for or requiring employees to provide their social media login information or to otherwise make available their social media pages to their employer.[2]

Under the ECPA, there is also a business purposes exception, which permits employers in certain circumstances to monitor electronic communications for legitimate business reasons when they own the systems being used. So, under federal law, employers may have some latitude in monitoring employees’ use of company-owned electronic communication systems.

Additionally, most states recognize a common law right to privacy and a cause of action known as “intrusion upon seclusion.” Employers may violate an employee’s right to privacy if they intrude where employees have a reasonable expectation of privacy and/or where there is no legitimate business interest that outweighs an employee’s expectation of privacy.[3] Employees enjoy a lesser expectation of privacy at work and when using company-issued devices. On the other hand, employees enjoy a heightened expectation of privacy using a personal device or working from home. In the latter scenarios, employers should tread carefully.

While the nuances and overlap of the federal and state privacy laws are complicated, generally speaking, employers find themselves in trouble when: (a) monitoring employees goes beyond the employees’ reasonable expectations of privacy, (b) employees have no actual notice of monitoring, or (c) there is no legitimate business reason for the monitoring. For (a), (b), and (c), context matters—for example, where the work occurs (at the office or at home) and on what device (company-issued or personal). These problem areas create the need for clear, specific, and written policies putting employees on notice of what the company is doing and why. Also, consider that written policies are not the only way to diminish expectations of privacy. In a physical workplace, employers can post physical reminders (e.g., a sign that says: “You are being videotaped”). In a virtual workspace, employers can post virtual reminders (e.g., a notice when employees log into a company computer or network).

National Labor Relations Act

 
The National Labor Relations Act (“NLRA”) places limitations on an employer’s ability to surveil union organizing efforts or other protected concerted activities by employees. Additionally, the NLRA prohibits employers from discriminating against employees based on their engagement in protected concerted activity that may be discovered through electronic monitoring. For example, if an employer discovered social media exchanges among employees discussing workplace conditions, that activity would likely be protected. For unionized workforces, surveillance or monitoring may be a mandatory subject of bargaining with the union (this is particularly true for video or GPS surveillance).
 

Employment Discrimination Laws

 
Employers should also consider whether they are consistently and fairly utilizing electronic monitoring and ensure that any targeted use of monitoring is based on legitimate, nondiscriminatory, and nonretaliatory reasons (and not due to a protected characteristic). Employees have asserted discrimination claims against employers alleging that the act or frequency of monitoring by employers were unlawfully motivated or done in retaliation for engaging in protected activity (such as making an internal complaint of discrimination or filing an EEOC charge). For example, in one case a plaintiff filed a Title VII retaliation alleging, among other things, that her employer had installed a camera at her workstation in retaliation for filing an EEOC charge. While these claims have largely been unsuccessful on the basis that such monitoring does not rise to the level of an adverse action, courts have suggested that such lawsuits could succeed if increased monitoring rises to the level of a significant harm to an employee.
 

State Laws on Lawful Off-duty Conduct

 
Additionally, some states have laws which prohibit employers from discriminating against employees based on lawful off-duty conduct. Bottom line, if an employer discovers information about an employee’s lawful off-duty conduct through electronic monitoring that the employer does not like, state law may provide protections for employees from any adverse actions related to that conduct.
 
Finally, while the details exceed the scope of this article, employers who gather information through electronic monitoring may have obligations to protect that information under federal and state data privacy and security laws.
 
In conclusion, electronic monitoring of employees is governed by a complicated framework of federal and state laws. While employees may be enjoying watching the “Big Dance®” from home this year, when it comes to electronic monitoring, employers have their own dance to do in attempting to strike a balance of appropriate, effective monitoring within the various legal parameters that exist. Fear not—those parameters can be successfully navigated. Legal counsel can be an important member of the team in developing a champion policy that is also tailored to the jurisdiction where the employer operates.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.