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Employer Considerations for Monitoring a Remote Workforce Employer Considerations for Monitoring a Remote Workforce

Employer Considerations for Monitoring a Remote Workforce

Now that working from home has become the norm rather than the exception, employers have grappled with best practices for ensuring and monitoring employee productivity. The market for employee surveillance products includes keystroke counters, facial recognition software, audio and video recording technology, and GPS for location detection, and that market is booming. In fact, Hubstaff and Teramind—two competitors within the workforce monitoring software arena—reported that their sales have tripled since the onset of the pandemic. 

Employees may be less-than-thrilled that nearly every minute of their day is accounted for by way of ‘big brother,’ and some state legislatures are stepping in to ensure that management’s supervision does not evolve into a violation of their constituents’ right to privacy. Take, for example, the state of New York. Beginning May 2022, private employers must provide employees written notice of intent to monitor internet usage and electronic communications, including telephone calls and electronic mail. Employers must also conspicuously post a notice and obtain their employees’ acknowledgment of the policy. Violating New York’s newest privacy law can come with a hefty penalty—up to $3,000 for routine offenders. 

Similarly, before Connecticut employers can collect any type of data on their employees’ activities at work, they must first provide those employees with written notice. The statute provides a non-exhaustive list of means by which employers might collect said data, such as computers, telephones, wires, radios, cameras, and photoelectronic systems, and must, therefore, provide notice. Like New York, Connecticut imposes a civil penalty of up to $3,000 on employers who fail to comply. Delaware also requires its employers to provide written notice to employees whose telephone calls, electronic mail, or internet usage are being monitored. The statute provides a civil penalty of $100 for each violation but explicitly states that the civil penalty is not an exclusive remedy. In other words, employees may pursue other claims against their employers for alleged violations of their privacy.

Ultimately, employers can—and should—view their policies through more than one lens. Indeed, prior to purchase and implementation of monitoring software, employers should consider state privacy laws and employee morale. Ensuring the legality of a particular practice is, of course, the best first step, but even the most well-intentioned policy can tank employee morale faster than COVID-19 destroyed my summer vacation. Consider discussing how remote workplace monitoring benefits the employees, too—that it can protect them from harassment and cyberbullying and allow management to reward those whose productivity has surged in the midst of an otherwise turbulent time. In sum, transparency is key—both on behalf of the employer and its employees—and monitoring your remote workforce, if done correctly, can certainly benefit all parties involved. 

For more information on workplace surveillance policies, contact Abigail Barr or any member of Ice Miller’s Labor, Employment and Immigration Practice Group.

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.
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