By Mark Carey
Employers have a legitimate business interest in managing employees, even remotely. Employees may or may not have a reasonable expectation of privacy while working remotely over their own personal computers and cell phones. Where’s the balance? Should it be a balance? Why are employees entitled to so little protection? What happens when other family members privacy is negatively impacted at the hands of the employers desire or right to monitor employees? These are the questions I’ve been thinking about.
In the digital reality, employers can easily monitor their employees in various ways, ranging from ordinary monitoring such as reading employees, emails, to more sophisticated approaches, such as using a wristband that can track every move the employee and makes him identify every time she is paused to scratch or fidget or installing an application that can constantly record and analyze an employee’s voice and tone. The technology of today makes this whole process of supervising easier to manage. It enables the employer to supervise employees even without their awareness, often at relatively low cost. Consequently, supervising employees has become a simple and common routine in numerous workplaces around the world. (Source).
Types of Employee Monitoring Software
In September 2021, employer demand for remote employee surveillance software increase 66% higher than in 2019. In fact, there was a 63% increase in software purchases since March of 2021.
Here’s a short list of employee monitoring software being used by your employer on your computer, or your device: Hubstaff, Time Doctor, FlexiSpy, ActiveTrak, SPYERA, Teramind, DeskTime, and WorkTime to name a few.
Here’s a list of what the software providers are offering in terms of their services: Software Monitoring; Remote Control Takeover, which means they can just take your computer and lock it down in the event they want to fire you; Keystroke Logging, we have written about in the past HERE– essentially the employer can see everything you type into your computer from pornography searches to your time hanging out in Facebook; Screen Monitoring, where the employer can view your computer screens and the Netflix episode you are binging at work; Internet Monitoring and Filtering; Call Tapping; Location Tracking; Webcam Surveillance, this one’s a doozy- the employer can watch everything you are doing at home and you have no idea; Audio Recording; Email Monitoring; IM Monitoring; Mobile Device Access, yes your cell phone can be accessed by your player; User Action Alerts; and Time Tracking.
Overall, here are the percentages of what employers are actually using: 81% of employers offer keystroke logging, 61% provide instant messaging monitoring, 65% send user action alerts, 38% are capable of remote control takeover. (Source).
In a recent survey by the Social Science Research Council in Fall of 2020, 23% of remote workers responded they were not sure if their employer had a monitoring policy or whether they were in fact being monitored.
Remote Working Via Zoom and Teams
There you are working in your dining room on your personal computer owned by you. Your remote work situation requires that you access the employer proprietary portal to work on files, talk to colleagues via slack or attend a zoom call or Microsoft Teams meeting etc. The microphone on your computer or device is very powerful and will pick up everything you say and it will pick up everything else going on in the house. Imagine your family member in the next room is talking to another third party about their cancer treatment, a death in the family, listening to a privileged discussion between a client and her attorney, possible proprietary work information from their employer, financial information discussion with a broker, a stock trade, inside information about a company stock, medical discussion with a physician or mental health provider, or your child’s learning disability. I can make this hypothetical more serious but you get the idea. Right now there is absolutely no way to monitor this on your end, manage it or even prevent the invasion of privacy that is running rampant through 122 million households across this country. What in the world are we going to do about this? I can only offer the following practical suggestions to deal with employee monitoring during the pandemic. First, make sure to work only on employer provided computer device. Resist your employer’s efforts to make you log into business meetings etc. via your own computer. This will ensure your privacy of the contents of your own personal computer is not being monitored by your employer. The same suggestion would apply to your personal cell phone. Second, work in a location in your home where you can control the household traffic and preserve the privacy of others in your home. Third, attempt to locate the employers employee monitoring policy and determine the scope of the surveillance. This information will inform you of the boundaries of the monitoring and what to avoid on your end. Fourth, if your employer monitors the activity of your computer or mouse, some creative employees have purchased mouse movers or jigglers, so they can take a break and go to the bathroom or deal with their kids during the work day. Also, employers are required in certain states to provide advance notice of employee monitoring and obtain consent.
The New York Times is conducting a survey called Share Your Experience With Worker Tracking Systems and you can give your feedback about this important issue. I encourage you to participate in the survey.
New York State Enacts Employee Monitoring Law
On November 8 2021, New York Governor Kathy Hochul signed a new law requiring employers to provide written notice to employees and obtain consent before engaging in electronic monitoring of their remote work in office electronic communications. The new law takes effect May 7, 2022, but employer supported lobby groups have vowed to overturn the law. The law applies to any employer who has an office in New York State. Other states have also enacted laws to safeguard the privacy of remote employees working from home and require employers to provide notice and employee consent before being monitored: Connecticut, Delaware, Colorado, and Tennessee.
Emails Are Company Property
Many employees I’ve spoken to over the years do not understand the rules regarding email. Simply, employees do not understand their work email is actually owned by the company and the employee must preserve and not abuse it. There is absolutely no privacy in your employer email account, including your signing on to your personal Gmail account on a work computer or device. Your employer has software that can monitor your computer or device, typically not in real time due to federal laws regarding wiretapping. I always advise new and existing clients to take their private conversations offline, so there’s no trace on work related devices. This will ensure that you are not sharing your information inadvertently with your employer, including photos you would never want seen by your employer or the private content on your own device.
Employer Issued Cell Phones and Privacy
If your employer issues you a company cell phone, you do not have a reasonable degree of privacy using that cell phone. Under the Electronic Communications Privacy Act of 1986, it is illegal to intercept any wire, oral, or electronic communication. There are a few exceptions, an employer is entitled to monitor calls if there is a legitimate business reason to do so. There is also a prior consent exception, where by only one party to the call gives consent, i.e. one consent state rule. If you are a government employee, then you may have a Fourth Amendment right to privacy regarding your personal cell phone used for business purposes.
The employer has a legal right to access all of your data usage on the company owned phone, including personal information. Many employees I’ve talked to have company provided cell phones they use for both business and personal use. That’s a huge mistake. It is tempting to accept the employers offer to pay for your monthly service fee, but who really has control over the phone. I would argue that the employee has control, but some employers do not share the same opinion citing the employer’s exemption mentioned above. Ownership of cell phone devices does not guarantee privacy interests are being protected. Personal cell phones used for business purposes may deserve more constitutional protection of privacy. Here’s what a federal court has said regarding this issue. [A] phone not only contains a digital form of many sensitive records previously found in the home such as a bank statement, it also contains a broad array of private information never found the home in any form, such as internet search results in browsing history, and other personal information maintained by the user. (Riley v. California, 573 U.S. 373, at 396-97 (2014)).
There is an argument to be made for employee privacy if the issue came up that the employer was invading employee privacy while using a personal cell phone to conduct work for their employer. This rule would not apply to the employer owned phone used by the employee, because the employer is entitled to use its’ property as it desires. In both instances above, there are exceptions to protect personal health information and financial information.
The Future of Employer Monitoring
I anticipate more states enacting laws regarding notice and consent, but these statutes have little force to control and prevent the obtrusive invasion of privacy when employees work remotely from home. As discussed above, employees can take simple steps to safeguard their privacy and those in their households. The current and future legal dispute will involve the balancing of the private employer’s right to monitor remote workers and the employee’s privacy inside their own castles. To quote Sir. Edward Coke (pronounced cook) (1552-1634), the house of every one is to him as his Castle and Fortress as well for defense against injury and violence, as for his repose “ in essence a man’s home is his castle.
If you have information you want to share with us or you want to ask about this issue privately, please contact Carey & Associates, PC at (203) 255-4150.
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