Working from Home and Electronic Monitoring Laws
With so many people now working from home, it’s understandable to wonder how much of our remote work employers can monitor—and, of course, whether any privacy laws protect against electronic monitoring.
The experienced attorneys at Ottinger Employment Lawyers are here to help guide you. Contact us for more information today.
What Is Electronic Monitoring?
Electronic monitoring means collecting information about employee communications and activities via computer, telephone, webcam, microphone, etc.
It’s a way to conduct workplace surveillance of activities that a supervisor cannot directly see or hear.
How Does Electronic Monitoring Work?
Companies can electronically monitor their employees in numerous ways. If you have a work-issued computer, your boss can access your keystroke data, how much time you spend idle, webcam data, and your microphone.
Some monitoring programs even take regular snapshots of your screen without your knowledge.
Having a corporate internet connection allows the company to see what websites you visit and all your emails.
Unfortunately, if you also use the connection to check private email, websites, or social media accounts, your employer may be able to view those as well.
How about all those handy collaboration tools you use like Slack, Google Meet, and Microsoft Teams? They, too, are owned by your employer, so they can access the content.
Your company may also be recording your video conferences on Zoom and Microsoft Teams.
Watch out for that company-issued phone too. All your GPS data can be tracked.
Why Do Companies Conduct Electronic Monitoring of Employees in the Workplace?
The primary justifications employers use for having a workplace monitoring policy are security and productivity.
Automated employee monitoring programs can catch cybersecurity errors or attempts by employees to steal sensitive information. But they pick up lots of private data in the meantime.
Likewise, keystroke tracking and surreptitious screenshots can be used to highlight which employees are lagging.
The problem is that while companies say they use this information to encourage employees to boost productivity, they also can use it for disciplinary reasons.
Are There Any Laws that Protect Employee Privacy?
Yes, but they provide minimal privacy protection. The Electronic Communications Privacy Act of 1986 (ECPA) prohibits employers from intentionally intercepting their employees’ oral, wire, and electronic communications.
But the law makes exceptions where the employee consents or where the employer can show a legitimate business reason for monitoring oral and electronic communications.
In general, workers should not expect much privacy when it comes to workplace communications—especially when using employer-issued computers, phones, and networks.
Some states have gone a step further in addressing electronic monitoring in the workplace.
For example, California already prohibits the recording of confidential audio communications without the consent of the person being recorded.
On January 1, 2023, the California Privacy Rights Act (CPRA), which amends the California Consumer Privacy Act, will go into effect.
This workplace privacy law requires employers to provide a notice to employees of the categories of sensitive personal information that will be collected and the purpose for doing so.
In New York, an amendment to the state’s Civil Rights Law that goes into effect on May 7, 2022, requires New York employers to provide notice to their employees that telephone, email, and internet usage data will be monitored and to obtain the employee’s written acknowledgment that they received the notice.
Do These Laws Protect Me If My Company Is in Another State?
Whether electronic monitoring laws in your state protect you if your employer is in another state depends on a lot of factors. If you have concerns, it’s best to ask your employer about their policy.
Contact Ottinger Employment Lawyers to Learn More About Your Privacy Rights
If you live or work in California or New York, Ottinger Employer Lawyers can provide guidance on your rights. Our boutique practice focuses solely on employment law.
We can advise you regarding your electronic monitoring concerns while working from home. Call us today or contact us online to schedule a consultation with one of our experienced employment attorneys.
Robert Ottinger, Esq.
Robert Ottinger is an employment attorney who focuses on representing executives and employees in employment disputes. Before starting his firm, Robert slugged it out in courtrooms trying cases for the government. Robert served as a Deputy Attorney General for the California Department of Justice in Los Angeles and then as Assistant Attorney General for the New York Attorney General’s Office in Manhattan.
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