Employee Monitoring and Privacy in the age of COVID-19

By Zhen Liu

Workplace privacy and employee monitoring technologies have become more widespread  in recent years, due to the rapid growth of digital technology and surveillance platforms.  During the COVID-19 global pandemic, many of us find ourselves working at home with insufficient physical or personal space, and even worse, limited boundaries between work and home.  The boundaries between people’s professional and personal spaces were quite blurred before, and they are even murkier now.

In reaction to the global pandemic, businesses have required their employees to work from home when a state’s stay-at-home orders went into effect.  Many companies that resisted allowing employees to work from home prior to the COVID-19 crisis have now accepted it as a new and necessary way to do business. Big financial and banking companies on Wall Street, for example, with tens of thousands of employees in office buildings in New York City prior to the pandemic, are deciding that it’s unlikely that all their employees will ever return to those offices.  Many of these employees live in New Jersey.

Companies have had to put major efforts and resources into figuring out how to use technology for employees to work efficiently from home.  In most cases, however, employees are using their own devices, home technology, and cable modems, possibly sharing with housemates or family members who are doing their own work at home, or with students who are attending school remotely with school-issued iPads.  As a consequence, businesses should be more concerned than ever about security, privacy, and of course, work productivity.  It’s no surprise that many have turned to the help of employee monitoring software and programs.

What Is Employee Workplace Monitoring?

Employee Monitoring means employer surveillance of employee activity through different  methods.  Businesses engage in employee monitoring for different reasons, such as to track performance, to avoid legal liability, to protect trade secrets, and to address other security concerns.  Depending on the device and motivation of the employer, employees can expect employers to monitor them by:

• Keeping track of what they type
• Recording Internet activity
• Taking screenshots
• Using a device’s webcam
• Noting which employee access what files and when
• Monitoring an employee’s physical location using GPS
• Measuring the employee’s productivity, such as noting a computer’s idle time or how long an app or piece of software remains open.

How Is The Surveillance Done?

Common methods of monitoring include software monitoring, telephone tapping, video surveillance, email monitoring, and location monitoring.

• Software monitoring can occur if employees use company computers for their work, companies often utilize employee monitoring software that allows them to track what their employees are doing on the computers. Data that may be tracked can include typing speed, mistakes, applications used, and what specific keys are pressed.
• Telephone tapping can be used to recover employees’ phone call details and conversations. These can be recorded during monitoring. The number of calls, the duration of each call, and the idle time between calls, can all go into an automatic log for analysis by the company.
• Video surveillance can provide video feed of employee activities that are passed through to a central location where they are monitored live by another person. These can be recorded and stored for future reference which some believe is the most accurate way to monitor employees. Management can review the performance of an employee by checking the surveillance to detect and potentially prevent problems.
• Email monitoring gives employers the ability to look at email messages sent or received by their employees. Emails can be viewed and recovered even if they had been previously deleted.
• Location monitoring can occur and be used for employees that do not work in a static location. Supervisors may choose to track their location. Common examples of companies that use location monitoring are delivery and transportation industries. Employees’ phone call details and conversations can be recorded during monitoring. The number of calls, the duration of each call, and the idle time between calls, can all go into an automatic log for analysis by the company.

Is Remote Employee Monitoring Legal?

The answer is generally YES.  Companies have a legitimate interest in protecting corporate assets. Electronic privacy is regulated at both the federal and the state levels. Federal workplace privacy and employee monitoring regulations stem primarily from the Electronic Communications Privacy Act of 1986.  The ECPA allows business owners to monitor all employee verbal and written communication as long as the company can present a legitimate business reason for doing so.  It also allows for additional monitoring if the employee gives consent.

BUT, in New Jersey, the tort of intrusion upon seclusion provides the basis of a claim for  the intentional intrusion, physical or otherwise, upon the solitude or seclusion of another . . . if the intrusion would be highly offensive to a reasonable person.  New Jersey employment law generally recognizes that employees have a limited right to privacy in the workplace, including in their digital life.  Case laws clearly showed that New Jersey courts favor an employee’s right to privacy while allowing exceptions to apply.

For example, the Supreme Court’s recent decision in Friedman v. Martinez considered whether evidence of an actual viewing or recording is needed to establish an invasion of privacy.  The New Jersey Supreme Court held that victims do not need to present evidence that they were secretly recorded to bring a cause of action for intrusion on seclusion.  Rather, an intrusion may be established by circumstantial evidence and reasonable inferences drawn thereof.  In so holding, the Court reasoned that “[i]t is the intrusion itself, and not an actual viewing, that is critical.  And that intrusion takes place when a victim uses a private space where a spying device has been concealed; it does not depend on when — or whether — direct evidence of actual spying is found.”

The Dilemma: How Do Things Look from The Employee’s Viewpoint?

Some computer monitoring software has the ability to show exactly what employees are doing on their computers.  Generally, as mentioned above, there is practically no reasonable expectation of privacy for an employee using a company device, so anything employees do on their company-owned computer is visible to their employer.  But we all know things are different now, as many employees are using their own devices, home technology, and cable modems, possibly sharing with housemates or family members who are doing their own work at home.  What should employees expect now?

First, it is clear that employees are now facing a heightened level of surveillance.  While people expect to be observed and to have their activities monitored while in the traditional workplaces, their expectations for what happens inside their homes may be different.  Employees might reasonably expect a greater degree of privacy when working from home, since employers now can keep track of what they are doing in the living room.

Second, when overdone, employee monitoring can be bad for morale, since employees won’t feel trusted and will feel micromanaged.  People by nature generally tend to want more freedom and less monitoring.  Many people and organizations are against monitoring the activities of people in the workplace.  Opponents include civil liberty groups, privacy advocates, and many employees themselves.  Among the major criticisms of electronic employee monitoring are increased levels of stress, decreased job satisfaction, decreased work life quality, and lower levels of customer service.  Monitoring can create a hostile workplace, possibly eliminating the whole point of monitoring in the first place (i.e., to increase efficiency).

Suggestions and Restrictions on Workplace Monitoring

Some advice for employers to avoid legal challenges in employee monitoring:

1. Use video surveillance only when justified by a legitimate business purpose (e.g., preventing theft or workplace violence, investigating illegal or improper conduct, monitoring employee performance).
2. Limit video surveillance to the least intrusive time, place and method that will serve the business purpose.
3. Obtain written employee consent to video surveillance for legitimate business purposes.
4. Do not use video surveillance devices that capture or record sound without complying with federal and state wiretap and recording laws.
5. Do not select employees for video surveillance in a manner that might be considered discriminatory under federal or state discrimination laws (e.g., do not videotape only women or only Muslims or only people with disabilities).
6. Do not select employees for video surveillance in retaliation for exercising rights under any law.
7. Understand and comply with state or local laws dealing with video surveillance.
8. Train supervisors in the legal issues involved in video surveillance.
9. Treat information obtained through video surveillance as confidential, and limit access to video recordings to security personnel or management personnel with a need to know.
10. Adopt procedural safeguards to avoid unintended or improper use of work-related video recordings.

Conclusion

Monitoring employees working from home while maintaining an efficient workplace during the age of COVID-19 can be challenging to businesses and companies.  Remember, transparency is always a good practice.  Since many employees feel uncomfortable being monitored, it’s essential to be forthcoming with clear notice that communications may be monitored and how.  More importantly, employers who monitor must be responsible and reasonable.  As the law slowly catches up with technology, many questions remain.

Zhen Liu is a recent graduate from Seton Hall Law School, where she was a member of the Asian Pacific American Lawyers Association. She specializes in Family Law and serves as research assistant to associate reporters of The American Law Institute.