Workplace privacy and surveillance software: What the law says

When employees go into the office, they give up a degree of personal privacy: Their boss may monitor what they do on their phone and computer, and even scrutinize their appearance and behavior with coworkers. But what happens when their workplace suddenly becomes their home?

In the pandemic age, millions of employees are working from home for the first time, and bosses are scrambling to keep track of them. The solution for many companies comes in the form of commercial software that lets them log how staff spend their time—or even turn a camera on them as they sit in their bedroom or living room. This software can be deeply invasive when it is deployed in a person’s home, a place we consider to be the last sanctuary of private life.

This new era of the “boss in the bedroom” can be unsettling, and it raises hard legal questions about just how far employers can go in tracking their employees. Here is a plain English Q&A about what is at stake.

What exactly is workplace surveillance software?

Using software to monitor employee productivity is not a new phenomenon. Some companies have long used such tools to examine how much time employees are spending on Excel vs. Facebook, or to review what they’ve browsed on the web.

Newer surveillance software, though, can also burrow much deeper into what someone is doing. The maker of a tool called Time Doctor boasts that it can take a screenshot of a worker’s screen every few minutes and track what is being typed and when the mouse is moved. Time Doctor says it can even use the computer’s camera to take photos—with or without an employee’s knowledge. Meanwhile, companies like Hubstaff offer location-tracking apps to place on workers’ phones or laptops to determine where they are. Hubstaff says the primary use is to help companies ensure salespeople are meeting with clients, but such apps could also serve as an all-purpose tracking tool.

And these tools are not only for an employee’s direct boss. According to Time Doctor’s website, third parties can use them too. One section reads, “Give your clients white-label access to Time Doctor at no extra cost, under your own brand and domain. Build client trust by showing them the progress on their projects with screenshots and reports about the tasks that are being worked on.”

Both Hubstaff and Time Doctor say interest in their products has tripled since the pandemic began.

Do companies have to tell employees they’re watching them?

Surprisingly, no. According to a 2017 Harvard Business Review report on employee surveillance, only two states—Delaware and Connecticut—have laws requiring companies to inform workers that they will monitor them.

But Jonathan Segal, a labor law lawyer at Duane Morris, notes that informing employees is good practice, in part because it will lessen the legal exposure companies face if a worker says they violated his or her “reasonable expectation of privacy.” In reality, many employees will consent to such practices (whether they realize it or not) through the stack of paperwork they sign during the onboarding process.

More broadly, the issue of employee surveillance is largely unregulated—indeed, existing labor laws did not anticipate widespread working from home. Meanwhile, the power of the technology to monitor employees—for instance by taking photos of them—has taken a big leap forward in recent years.

“What you’re seeing now is what our society at large is grappling with,” says Jena Valdetero, a privacy lawyer at Bryan Cave. “The way tech is being utilized in the workplace and beyond has moved far beyond what the law envisions.”

Can an employer monitor my personal device?

Yes. In the era of BYOD (Bring your own device), many companies already ask employees to install security software to protect sensitive corporate information. Firms could likewise ask employees to install productivity monitoring software as well—and some are already doing so. An employee can of course refuse to do so, but in many cases that could give a company reason to terminate the individual.

Are there any laws that limit workplace surveillance?

Yes, but they are not particularly helpful. A law called the Electronic Communications Privacy Act (ECPA) restricts employers and others from snooping on private conversations. But, as the HBR article notes, there is a giant loophole in the form of a “business purpose exception” that excuses surveillance done with a legitimate business purpose.

This also means employers are off the hook if they happen to witness a worker’s personal email or social media communications, or even see the person undressing in the bedroom. Likewise, an employer’s surveillance software could legally record an employee visiting websites about health or pregnancy.

But Segal says this does not mean employers have carte blanche to do what they wish with such images or information. If they share an image of an undressed employee with a third party, the worker would very likely succeed with a type of privacy lawsuit known as “intrusion on seclusion“—regardless of what a company’s employment contract might say.

In the context of employees working at home, many of these issues represent novel legal frontiers. Segal cautions companies that class action lawyers will be eager to explore them. Finally, while there is little protection in state and federal laws against intrusive surveillance, unionized employees may be able to gain additional protection through collective bargaining agreements—essentially using a union contract to create privacy rights.

Is every company going to embrace monitoring software?

No. Just because a company has the legal right to employ surveillance doesn’t mean it’s a good idea. Segal, the labor lawyer, notes that talented employees will rebel or quit if a firm imposes intrusive or dehumanizing surveillance methods.

“We need to think about whether certain monitoring, as a business matter, does more harm than good. Asking employees to explain where they were if they are inactive for 60 seconds may be lawful but understandably would agitate an employee and invites questions like, ‘Do you want me to report pee breaks?’” Segal says.

He adds that if an employer is concerned about a given worker’s presence or productivity, it is easy enough to see if the person responds to group emails asking for help. If not, Segal advises bosses not to ask “What were you doing?” but rather to inquire why they were not working.

Meanwhile, as more employees shift to remote work permanently, Segal says workers must accept the porous boundaries between work and home. While in the early days of the pandemic, many workers may have been flustered to take a video call in their house or to wear professional clothes at home, he says our new reality means they should be prepared to accept such changes.