Law Technology Today From the ABA Legal Technology Resource Center
Related Articles
In the time where anyone can look up for anyone online, “privacy” has a very different meaning. It is not just that an employer can look for your social profiles, there is so much more that’s being done in the name of employee monitoring. Legally, all employers have the right to monitor their employees. From a privacy respective, many of us wonder has employee monitoring gone too far?
Mostly, large companies are more likely to check on their employees. According to a study done by the American Management Association, 80% of the major companies monitor the internet usage, phone, and email of their employees. Particularly, the ones in the financial industry are more vigilant.
Before the invention of activity-tracking gadgets like Fitbit and monitoring apps for employees such as Xnspy, the footsteps of employees were counted. This particularly used to happen in the medical industry where employers used tape measures to gauge how nurses walked in their daily rounds. In today’s digital age, keystrokes and similar applications tell supervisors when a keyboard was idle for more than 15 minutes. Hours are being tracked through security badges, fingerprint scanners and locations are being monitored using GPS.
Small businesses that are using Xnspy and similar other employee cell phone monitoring applications tracking things like:
- Internet use
- Software downloads
- Files stored on the office computer
- Anything that is displayed on the computer screen
- How long the computer remained idle?
- How many keystrokes were typed per hour?
- Emails sent or received from the work email address
And a lot more and all this is legal.
Employees are provided with office equipment (cell phones and laptops) that already have Xnspy installed. This monitoring app for employees tracks their internet usage, number of calls and text messages sent during work hours, emails and internet browsing activities.
It’s clear that employers can monitor anything an employee is doing during the work hours, but the question that needs to be addressed is how much of that is legally allowed? Well, each state laws regarding to it and they vary from one state to the other.
What Does Federal Law Say?
As per the Federal Law, employers have the right to monitor their employees as they perform their duties. As per Lewis Maltby, President of National Workrights Institute, the location where employees are being monitored matters. If an employer wants to place a microphone in the office area to listen to what workers do all day, that is legal. But it is not legal to place a microphone in the cafeteria where people may be talking about their personal issues. Similarly, it’s not legal to place monitoring devices in locker rooms and bathrooms. The employers who do this get sued and penalized.
What Does State Law Say?
Laws regarding workplace surveillance mostly revolve around consent issues. Legal experts recommend organizations to communicate with their employees about the monitoring and get a written confirmation that they consent to it.
How are Employees Protected from Privacy Invasion?
The Electronic Communications Privacy Act of 1986 (ECPA) (18 U.S.C. §2511 et seq.) and common law Protections Against Invasion of Privacy has put some restriction on workplace monitoring. ECPA is the only Federal Law was passed in 1986 by the Congress as an amendment to the Federal Wiretap Act.
The ECPA prohibits an employer from intercepting the oral, wire and electronic communication of the employees intentionally. There are several exceptions to this prohibition too. Two of them concerns employers. One is the ‘Business Purpose Exception’ which permits the employer to monitor oral and electronic communications as long as it shows that it was done for legitimate business reasons. Second is the ‘Consent Exception’ which allows employers to monitor the communications using monitoring apps for employees and other means?
A violation of ECPA compliance can result in civil as well as criminal penalties. The civil penalties can be as high as $100 (for each day of illegal monitoring) to even a minimum penalty of $10,000.
This is how the laws in different states limit employers:
California
- 435. (a) No employer is allowed to make audio or video recording of an employee in the locker room, restroom or any room designated for changing clothes, unless authorized by the court.
(b) Violation of this section is considered an infraction.
New York
- 203-c: NY Code – Section 203-C: Employee privacy protection
- No employer is allowed to make a video recording of an employee in the restroom, locker room or a room where employees change their clothes, unless authorized by the court.
- No video recording that violates this section is permissible to be used by an employer (no matter what the purpose).
- In case of a civil violation of this section (a) the employer must award damages and reasonable attorney’s fees and costs to the plaintiff, and (b) afford injunctive relief against any employer that commits or proposes to commit a violation of this section.
West Virginia
- 21-3-20. Electronic surveillance; Use prohibited in certain areas; Penalty for violations
- It is not permissible for an employer, agent or representative of an employee (public or private) to operate any electronic surveillance device or system for monitoring or recording the activities of employees in a locker room, shower room, or rest room.
- An employer or agent who violates any such provision is guilty of a misdemeanor and if convicted shall be fined $500 for the first offence, $1000 for the second and $2000 for the third or any subsequent offence.
Generally, companies that have the intention of monitoring share legal documents at the time of hiring new employees and take their consent to monitor them for avoiding future ambiguities.
