“Eyes are always on you… There was nothing of your own, except a few cubic centimeters inside your skull.”
These words from George Orwell’s novel 1984 might seem to foreshadow a post-pandemic world where employers use monitoring software programs to monitor remote workers. But the truth is, productivity monitoring is nothing new. It’s also a far cry from Orwell’s fictional Oceania or the ever-watching “Big Brother,” provided employers keep a few legal considerations in mind.
First, a little background. The monitoring software program came to his workplace about ten years ago, and was initially popular in call centers and warehouses. Fast forward to his 2020, when the COVID-19 pandemic hit, and the surveillance industry exploded as employers in nearly every sector realized the urgent need to monitor employees who were suddenly working from home. Expanded.
Today, many employees still prefer to work from home, and employers are justified in implementing more extreme levels of productivity monitoring to monitor remote workers.
Types of monitoring software
Employers use a variety of monitoring software programs to track how their employees are spending their day. For example, some programs run in the background on an employee’s work computer, allowing an employer to spot-check an employee’s activity and investigate further if there are performance problems. Other programs track employee availability, aggregate it, and send reports to employers. The third type takes snapshots of activity at random points in time intervals to determine if the employee is working.
Side note: It’s not surprising that employees have found ways to trick certain monitoring programs, such as Mouse Jiggler, which simulate mouse movements to keep computers from entering sleep mode.
Legal Considerations for Employers
Privacy is a major concern when it comes to monitoring software programs. A simple way employers can address this is by informing employees via their employee handbook that they will be monitored while using the organization’s technology and requesting approval for this monitoring.
This precludes the claim that employees had reasonable expectations of privacy, and courts generally do not allow employers to monitor workers when assessing the legality of such monitoring. Contrary to legitimate business interests.
Still, the handbook’s protection against employer liability only goes so far. Privacy issues still arise when employee remote work monitoring captures the activities of family members and other family members. An employee’s personal email as well as her account. These private communications are generally protected under the Federal Stored Communications Act. In other words, even if monitoring software gets them, your employer has no right to read them.
Wage laws are another legal consideration. Under the Federal Fair Labor Standards Act, all hourly non-exempt employees must be paid for their hours worked and short breaks, and pay-exempt employees are normally paid for the week they work. must be paid in full. In other words, employers should not withhold payment from employees for periods of apparent inactivity identified solely by momentary monitoring snapshots.
The mere fact that an employee’s computer is inactive at a particular moment does not mean that the employee is not working. Employees may be taking work calls, reading printed reports, or taking short breaks covered by law.
Punishing employees for not accessing their computers per surveillance snapshot is problematic when restricting restroom use. The Occupational Safety and Health Administration requires employers to allow employees to leave the workplace to use the restroom if necessary and not to impose unreasonable restrictions on restroom use.
Bottom line: don’t cut people’s salaries with surveillance software.
Performance management and other uses
Employers can use employee monitoring software to help with performance management. It is a great tool for monitoring productivity and can be used for performance reviews, bonuses or raises, and employee discipline or termination considerations.
Still, employers should consider the true definition of productivity and performance for each position they monitor, remembering that for most jobs, time spent on the computer or the number of keystrokes alone do not provide the full picture. It is important to keep Productivity.
Monitoring software can also be used to protect against many other issues such as data theft, confidentiality breaches, cyberbullying, and harassment.
It’s important to consider the impact of monitoring software on employee morale and retention, especially when so many employers are struggling to recruit workers. But as long as employers are transparent and consistent, these monitoring programs can be used effectively.
About the Author: Allyson Terpsma is a partner in the law firm Warner Norcross + Judd LLP, dedicated to labor and employment law.she can be reached at [email protected].
