The Explosion of Employee Monitoring Technology - American Society of Employers - Kristen Cifolelli

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The Explosion of Employee Monitoring Technology

80% of organizations will be electronically monitoring employees by 2020.Innovation and the sophistication of employee tracking technology has grown exponentially over the last several years opening up a wide range of options for employers to track their employees' activities.   Some of the earliest technology that employers implemented included video cameras, phone listening, and keyboard stroke recording.  Technology from there evolved to the use of Global Positioning Systems (GPS) devices installed in vehicles, laptops, or through apps installed in smartphones and tablets used by employees to monitor employee movement. 

 

The newest employee technology monitoring trends include wearable fitness devices, smart watches, and heart rate monitors that help employees get in shape. This data is used by employers to help cut healthcare costs and decrease absences which will improve productivity.  Smart badges and conversation monitors are another new technology that involves GPS monitoring to track the length of conversations employees have when moving through the office.  The intent is to show facility usage and measuring the frequency of interactions between employees.  The technology will show how groups are collaborating, if groups of employees are spending too much time in meetings, or too much time alone at their desks.

 

Amazon has been granted patents for wristbands to track the location and detailed hand movements of their employees in order to monitor performance as they fill and ship orders.  Implantable devices the size of a grain of rice that can be embedded in the employee’s skin have been developed that can be used to track movement, open doors, and track photocopier use – just to name a few purposes.  With all the data that is being gathered, data mining software is being developed in order to perform algorithmic profiling.  The goal of this type of analysis is to assist with decision making such as who should be promoted based on work emails, phone call patterns, and social media usage.

 

Last year, the research firm Gartner found that more than 50% of 239 large corporations surveyed are using some type of nontraditional monitoring techniques. That percentage has increased from just 30% in 2015, and by 2020, they predict about 80% of companies will be monitoring employees, using a range of new tools and data sources.  Nontraditional monitoring will include things like analyzing the text of emails and social-media messages, scrutinizing who’s meeting with whom, gathering biometric data, and understanding how employees are utilizing their workspace.

 

The benefits of using electronic tracking are numerous and include reasons such as monitoring work hours for compliance with wage and hour laws; safety reasons including monitoring travel patterns and traffic laws while driving on company business; monitoring work patterns for efficiency, productivity, and performance; protections of company owned property; and using tracking for internal investigations. While there are many benefits for tracking employee activity, employers must be careful to use it correctly in order to avoid legal ramifications from improperly using information gathered from these systems.

 

One of the obvious downsides of electronic monitoring are the morale issues that might arise from concerns around lack of privacy and employees feeling like big brother is constantly watching.  Currently there is no federal statute that directly regulates an employer’s use of tracking technology to monitor their employees, though employers should become familiar with federal and state laws that recognize an employee’s right to some degree of privacy in the workplace.  States such as California, Minnesota, Tennessee, and Texas require consent in order to use tracking devices.

 

Other concerns also arise regarding how tracking technology could reveal medical information, such as who is using the bathroom and how often, who smokes, and who visits the vending machines and eats unhealthy snacks.  The concern is that this information could be used to discriminate against certain employees or to charge higher insurance premiums to employees considered a health risk.  The more information that the employer collects and tracks, the higher concern that the data could be hacked and used for inappropriate purposes.

 

Courts have generally upheld an employer’s right to monitor their employees through the use of GPS and other tracking devices on company owned equipment where an employee does not have any reasonable expectation of privacy during its use.  Legal risk of invasion of privacy claims dramatically increase when GPS monitoring is used on personal property or when monitoring occurs outside of work hours.

 

A New York state court held that installing a GPS device on an employee owned vehicle was unreasonable.  Tracking employees outside of works hours, whether using company owned or personally owned equipment, gains access to unneeded personal information.  In addition to invasion of privacy concerns, employers could become aware of information related to an employee’s off-site medical treatment appointments, religious service schedules, and other personal information that could later generate claims of discrimination or wrongful termination based on off-duty conduct.

 

When it comes to implementing an electronic employee tracking program, best practice guidelines include:

 

  • Ensure that there is a legitimate business need to justify the use of electronic tracking.  Tracking should be limited to working hours.
  • Communicate your electronic tracking policy.  It should clearly outline the business reasons for tracking employees, how and when they will be tracked, what data will be monitored, how it will be safeguarded, the employer’s right to monitor employees while using company owned property, and that employees have no right or expectation to privacy while using company owned property or equipment.
  • Employer policies should detail whether employees will be disciplined or terminated if they disable electronic tracking technology without permission.  Employees should be aware of these consequences prior to having the technology installed. 
  • Information gathered from electronic tracking should only be provided to those that have a business reason to know and be stored in a secure location.
  • Become knowledgeable regarding privacy laws and the use of electronic tracking technology in the states in which the employer operates.
  • Employer expectations regarding electronic tracking should be communicated up front, and employees should acknowledge in writing that they understand the policy before deploying the technology.
  • Ensure your data security policy is updated.

 

As technology continues to advance, privacy issues regarding monitoring employee activity will only continue to become more complicated.  Employers should work with their legal counsel to help them develop practical and compliant monitoring policies.

 

 

Sources: Workforce 3/6/2018, Gartner 5/3/2019, Seyfarth Shaw 1/26/2016, Lexology 2/18/2016, National Law Review 9/8/2014

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