Monitoring Employees: What’s Allowed? What Makes Sense?
Once upon a time, monitoring employees consisted primarily of sprinkling around a few video cameras in the warehouse to detect inventory pilfering. Times have changed: Today you can harness “behavioral modeling” software to try to assess employee productivity, using multiple data inputs combing activity on their computers (including web browsing activities), GPS data and other information. One monitoring service vendor boasts that you can “know what your employees are doing every second of the year.”
An organization called the “Privacy Rights Clearinghouse” maintains a laundry list of ways employers can monitor employees. The list is intended to help employees know their rights, but as the information makes clear, their privacy rights are limited. Consider:
- Telephone monitoring. Under just about any scenario, you can monitor employees’ telephone calls, either by recording them or tuning in. Some states, such as California, require that you give them a heads-up if you are recording calls. Most don’t. However, if you’re monitoring calls and you happen to listen in on a conversation that clearly is personal in nature, you are obliged to hang up. Yet if your company has a “no personal calls on company phones” policy described in your employee handbook, you can make note of a violation of that policy.
- Telephone records. You can review logs of individual employees’ calls by the phone number dialed and the call duration.
- Conversations among employees. Generally these can be monitored on the same basis as business-related telephone conversations.
- Computer keystrokes and terminal monitors. Software is readily available that allows you to do this, and in general it’s legal — unless you have a formal agreement with employees not to do so, of course. The same applies to monitoring the amount of time employees spend active at the computer.
- Email. The email from and to employees who are using company-owned computers is not private. That includes Gmail, Yahoo or other such personal web-based email accounts accessed via a company computer. Employers also can review deleted email.
- Text messages. You generally can access texts to and from employees on company-owned smartphones. Similarly, you can also monitor the audio of calls placed on company-owned mobile phones.
- Snail mail. Mail addressed to an employee at the workplace generally can be opened by the employer. However, this area is somewhat murky; consult an attorney before proceeding.
- Video monitoring. As noted earlier, this has long been a common practice. Common sense exceptions must be made for places like locker rooms and bathrooms, however.
- Tracking employees via GPS systems. This generally is allowed if their movements are based on the requirements of their job, such as making deliveries, taking checks to the bank, and so on. However, it’s best to inform employees that this is your practice.
Obtain Legal Guidance
It’s a good idea to get a labor attorney to guide you with respect to monitoring policies that may seem particularly intrusive. In general, spelling out your monitoring policies in your employee handbook is a good idea so that employees have been given fair warning. In some cases it might also be wise to get their written acknowledgement of their understanding of that policy.
Beyond simply protecting yourself legally, weigh the pros and cons of each element of your employee monitoring policy. Consider:
- What are the risks you are trying to reduce?
- How serious are those risks?
- How effective will the monitoring method be in reducing those risks?
- How will employees respond to the knowledge that they are being monitored?
Don’t Go Overboard
As James Madison famously once wrote, “If all men were angels, no government would be necessary.” Or to quote a more recent U.S. president, Ronald Reagan, “Trust but verify.” Some level of employee monitoring is generally required in all work environments. Yet be careful not to take it too far.
If employees feel they are working under a microscope at all times, many will, logically, interpret this as the employer viewing them with distrust. Believing that your company considers you untrustworthy is anything but motivational.
To limit that effect, new employees and all employees on a regular basis should be told how and why your monitoring policy was developed. It should be stressed that employees are valued and trusted, and that monitoring systems can offer them as much protection as the employer to the extent it keeps any unjust accusations from being leveled against them.