“Always eyes looking at you… Nothing belonged to you except the few cubic centimeters inside your skull.”
These words from George Orwell’s novel “1984” may seem to have foreshadowed our post-pandemic world in which employers use surveillance software to keep tabs on remote workers. The truth is, productivity monitoring isn’t new — and it’s still a far cry from the fictional Oceania of Orwell and his ever-vigilant Big Brother if employers keep a few legal considerations in mind.
First, some background: monitoring software entered the workplace about a decade ago and was initially popular in call centers and warehouses. Fast forward to 2020 when the COVID-19 pandemic hit and the surveillance industry exploded as employers in almost every industry saw an urgent need to monitor employees suddenly working from home.
Many employees today still want to work from home, and employers feel justified in undertaking more extreme levels of productivity monitoring to keep tabs on their remote workers.
Types of software
Employers use various monitoring software to track how employees are spending their day. For example, some programs run in the background of an employee’s work computer and simply allow employers to do spot checks on employee activity and then dig deeper if there are any performance issues. Others track employee downtime, aggregate it, and send reports to the employer. A third type takes a snapshot of activity at random times in time intervals to determine if employees are working.
Note: It’s no surprise that enterprising employees have found ways to fool some monitoring programs, including the Mouse Jiggler, which simulates mouse movement and prevents a computer from going into sleep mode.
Privacy is the biggest issue when it comes to software monitoring. An easy way for employers to address this issue is to inform workers via the employee handbook that they will be monitored while using the organization’s technology and to require their acknowledgment of this monitoring. This eliminates the argument that employees had a reasonable expectation of privacy, which courts generally weigh against the legitimate business interest of employers in monitoring workers when assessing the legality of a such monitoring.
However, the protection of a textbook against the liability of the employer goes no further. Privacy issues are always in play if employees’ remote work monitoring captures the activity of their family members or other household members. The same goes for employees’ personal email accounts. These personal communications are generally protected under federal stored communications law, which means that employers are prohibited from reading them, even if monitoring software detects them.
Hourly wage laws are another legal consideration. Under the federal Fair Labor Standards Act, all non-exempt hourly employees must be paid for all hours worked as well as short breaks, and exempt salaried employees must generally receive full pay for any week during which they perform work. This means that an employer should not withhold pay from an employee during periods of apparent inactivity identified only by a live monitoring snapshot.
Just because an employee’s computer is idle at some point doesn’t mean the employee isn’t working. The employee can take a call at work, read a printed report, or take a short break that is compensable under the law.
Penalizing employees for not being on their computers for every surveillance snapshot is problematic if it limits restroom use. The Occupational Safety and Health Administration requires employers to allow employees to leave their workplace to use the restroom when needed and to avoid placing unreasonable restrictions on restroom use.
Conclusion: Don’t use monitoring software to cut people’s wages.
Employers can use employee monitoring software to help with performance management. It is a great productivity monitoring tool which can then be used as consideration for performance reviews, bonuses or raises and employee discipline or termination.
Nonetheless, it is important for employers to consider the true definition of productivity and performance for each position they monitor and remember that for most jobs, time spent at the computer or number of keystrokes will not provide a full picture of productivity.
Surveillance software can also be used to protect against a host of other issues, including data theft, privacy breaches, cyberbullying, and harassment.
It’s critical to think about the impact of monitoring software on employee morale and retention, especially when so many employers struggle to recruit workers. But as long as employers are transparent and consistent, they can effectively use these monitoring programs.
Allyson Terpsma is a partner at the law firm Warner Norcross + Judd LLP, where she focuses her practice on labor and employment law. She can be reached at [email protected].