If you are on an employer-provided device, such as a laptop or cell phone, you likely are being watched!
With work-from-home and hybrid schedules becoming the norm, particularly after the pandemic, employers have grown concerned with whether their employees are actually “working.” In an attempt to ensure that they are, some employers have installed monitoring software on employer-provided devices, leading many to wonder, “But is this legal?”
The short answer: yes. The traditional rule is that employees do not have a right to privacy in the workplace, excepting the bathroom or changing room. An employer could even have you enter into an agreement allowing them to inspect your personal belongings.
Employers retain the right to monitor their property, including having security cameras around the building. They also can access and inspect any electronic devices, including computers and phones, that the company provides.
What about When Working from Home?
Things get dicey when you add work-from-home into the mix. Our homes are a private space, which no one can enter or search without a warrant. Employers cannot install cameras in your home, they cannot come into your home uninvited, and they cannot search your home. That said, employers can nonetheless search any employer-provided electronic device.
In an attempt to keep more tabs on employees that are away from the office, employers are starting to use more sophisticated monitoring software on devices. Monitoring can range from general email monitoring and internet monitoring – which may block external sites and flag personal communications or personal use of the internet – to key-stroke monitoring, which effectively records every action you make on a computer, including mouse clicks and letters typed. Key-stroke monitoring software can even register employee passwords.
Is Remote Monitoring Going Too Far?
Many jurisdictions are finding that employer remote monitoring is crossing a boundary. In Rene v. G.F. Fishers, an employee was able to proceed with a lawsuit against her employer for using keylogger software to access the employee’s personal email and checking account, using passwords it acquired from the software. The Indiana Federal Court found that the employee was able to meet the elements required to allege a violation of the Federal Stored Communications Act and the Indiana Wiretap Act.
The Northern District of California ruled in Brahmana v. Lembo that a plaintiff could proceed to trial in his case alleging his employer committed an impermissible “interception” under the Electronic Communications Privacy Act (ECPA) by using keylogging to discover the password to his personal e-mail account and, with that information, accessing his personal e-mail account.
Some states, such as Connecticut and Delaware, have decided to enact state laws to address employee privacy issues. With the rise in legal activity on this topic, it is clear that using keystroke monitoring software can pose a potential risk to employers. As a result, both employers and employees should keep certain best practices in mind:
- It is critical that employers have a clear and transparent privacy policy in place, and fully disclose any monitoring that may take place. This policy should be regularly reviewed with counsel to ensure its legality.
- Employees should make sure they fully understand their employer’s privacy policy and refrain from personal use of any employer-provided device.
The use of remote, automated data processing of employees’ activity dovetails with the risks of using artificial intelligence in the workplace. As always, proceed with caution with any new policies and consult with experienced counsel to weigh your options.