10 FAQs on the Legality of Monitoring Employees

Employee monitoring is used by many businesses to track the performance and computer usage of their employees. While this is an essential process, employers have a responsibility to ensure that their monitoring methods are non-invasive.

In this article, we will explain how and why employee rights should be protected, by answering the top 10 FAQs on the legalities of the monitoring process.

#1 What is Employee Monitoring?

Employee monitoring is the process of workplace surveillance conducted by employers to gather data on the activities of their employees in the workplace.

There are several reasons why employers may conduct this process, including to improve performance, safeguard staff, and protect their data or resources.

#2 Is Employee Monitoring Legal?

Employee monitoring is legal under most state and federal laws. 

The Electronic Communications Privacy Act 1986 (ECPA) states that employers can monitor the written and verbal communications of their employees, as long as they have a valid reason for doing so.

#3 When is Employee Monitoring Considered to be Invasive?

Employee monitoring can be considered invasive if employees are not made aware that they are being monitored. This process also becomes invasive when employers do not have a valid business reason for the surveillance, especially when working from home has become so commonplace.

Invasive employee monitoring may therefore include:

  • Monitoring employees outside of work hours without consent
  • Listening to or recording private phone calls and messages without consent
  • Installing monitoring software on an employee’s device without consent

#4 Which Laws Protect Employee Privacy in the Workplace?

According to an ExpressVPN survey, 59% of employees are anxious about the prospect of being monitored at work. 

However, there are laws in place ensuring that employees get the privacy that they are entitled to, whilst also allowing the employer to monitor the activities of the business.

The main employee privacy law is the Electronic Communications Privacy Act 1986 (ECPA), which is the only federal act governing workplace electronic communication monitoring.

This law sets the minimum limitations for employee monitoring and has been adapted by several states to impose greater restrictions on employers.

#5 Can Employers Watch Employees Using Video Monitoring Systems?

According to the ECPA, employers are legally allowed to monitor their employees using video surveillance systems if they have a legitimate reason for doing so.

However, some states across the US have chosen to increase restrictions and prohibit the use of video monitoring to maintain employee privacy.

For example, West Virginia, New York, and California have banned video monitoring in areas such as restrooms.

#6 Is It Legal for Employers to Monitor Company Computers?

Yes, employers can access any activity performed on a work computer, which is considered lawful if they make employees aware of this before monitoring their devices.

This includes monitoring screen contents, keystrokes typed per hour, and emails sent or received on the company’s system.

#7 Are Employers Legally Able to Monitor the Personal Devices of Employees?

For productivity and performance levels to be as high as possible, employees need to have a good work-life balance.

This involves employers allowing their employees to live their personal life outside of the workplace privately, without fear that they will be monitored.

Legally, employers cannot ask employees to download monitoring software on their personal devices without written consent. However, many companies do gain the consent of employees if they have a bring your own device (BYOD) to work policy in place.

#8 Can an Employer Monitor The Social Media of Their Employees?

Employers have the legal right to monitor the social media accounts of both current and prospective employees.

They can also take disciplinary action if an employee’s social media posts violate company policies.

#9 Can Employers Track Employees Using GPS?

If employers have a valid business reason for doing so and have gained consent from the employee, then they can use a GPS vehicle tracker to monitor employees.

GPS is used especially by companies employing people to work from home, to ensure that they are in the right location to work.

#10 Do Employers Have to Inform Employees That They Are Being Monitored?

In some states, employers are not required to inform employees of their monitoring procedures.

However, being open with employees about monitoring can be beneficial to employer-employee relations and may create a better company culture. A Dtex System survey found that 77% of American employees would feel less concerned about employee monitoring as long as they were transparent about it. 

For example, implementing healthy workplace initiatives and tracking the health metrics of employees can help lower the company’s health insurance costs. The data of employees who volunteer to join the program and their feedback can be used to plan the next steps for a healthier workforce.

Conclusion

Legally, employers are therefore able to monitor their employees. However, their employee monitoring procedures must be non-invasive to maintain good relations and ensure that employees feel respected within the workplace.

About the Author: Marian Domingo is blog contributor for Workplace Fairness.

This blog was contributed to Workplace Fairness and is published with permission.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.