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Lead Your Team Managing

The Laws and Ethics of Employee Monitoring

The Laws and Ethics of Employee Monitoring
Credit: Mopic/Shutterstock

Security and surveillance are common business practices to prevent theft and property damage, as is internal surveillance and employee monitoring. The main goals behind employee monitoring are to prevent internal theft, examine employee productivity, ensure company resources are being appropriately used and to provide evidence for any litigation.

Beyond simple video surveillance of the workplace, employers can install monitoring software on computers owned by the business, and GPS fleet-tracking tech can be installed on company vehicles. However, some business owners may not know how far they can or should extend their authority to monitor employees' activity.

Federal and most state privacy laws give discretion to employers as to how far they can go with their employee monitoring. In some cases, employers do not have to inform employees of the monitoring, but this depends on state and local laws. Some locations require employee consent to monitor.

"As a general rule, employees have little expectation of privacy while on company grounds or using company equipment, including company computers or vehicles," said Matt C. Pinsker, adjunct professor of homeland security and criminal justice at Virginia Commonwealth University.

Monitoring must be within reason. For example, video surveillance can be conducted in common areas and entrances; however, it should be obvious that surveillance in bathrooms or locker rooms is prohibited and can open a company up to legal repercussions.

Video surveillance doesn't need to be explicitly stated and agreed to by the employee. However, visible signage stating that the premises are monitored by security cameras can be enough to cover legal and ethical grounds. Also, just the knowledge of surveillance is enough to prevent internal theft by employees. Another issue arises when retaining any recordings, especially of meetings. If you record meetings with employees, especially ones dealing with discipline or HR-related issues, be aware that you may be legally obligated to keep those recordings and turn them over to a court if litigation arises.

Transparency is a good practice. Since many employees may feel uncomfortable with being monitored, it's important to be forthcoming with what it is you intend to accomplish and how it aligns with your business's goals.

"Opening up communication between employee and employer can convey several positive messages," according to Nate Masterson, marketing manager with Maple Holistics. Besides showing employees that their opinion is valued and taken into consideration, warning employees about surveillance can often mitigate the worries and fears of a violation of privacy.

Monitoring computer web activity is different and can fall under different legal precedent. There are different types of computer monitoring software solutions, some with the capability to let you know exactly what employees are doing on their computers. You can monitor what websites employees are browsing while connected to the business's Wi-Fi, all the way to their keystrokes on their company laptop. There is practically no expectation of privacy for an employee using a company device, so a good rule of thumb is to assume that anything employees do on their computer can be seen by their employer.

While it's fine to monitor employees' computer usage to make sure they're not wasting too much time on social media and frivolous browsing, employers should know they carry a risk of acquiring too much information. Employers already have some of their employees' most personal data, and they can run amok of privacy laws like HIPAA if they disclose private information to anyone.

Employers have the burden of protecting that information, even that which comes from an employee's personal browsing history or private data stored on a company computer. If a data breach were to occur, for example, and certain sensitive information was exposed, it leaves the company open to litigation by the employee.

Another way employers can potentially monitor employees, is through GPS tracking, normally as part of fleet tracking and telematics on company vehicles. With most fleet software, managers can track where a company vehicle is and where it's been, even if the employee is off the clock. Business owners can do this, as they have the right to know where their property is. However, when it comes to using GPS tracking of company devices like laptops and phones, it enters another murky area since employers can learn more than they need to about an employee's activity when they're off the clock.

With regard to employee monitoring, it's best to err on the side of transparency and balance. For example, posting clear signage citing your company's policy against non-work-related computer use can cut down on undesirable behavior without the need to overtly monitor employees.

"Ultimately, a balance can be reached by thinking through legitimate business interests and weighing them against the expectation of privacy of employees while also taking into account regulatory limitations which may differ state to state, country to country," said Joseph Lazzarotti, principal with Jackson Lewis law firm.

Andreas Rivera

Andreas Rivera graduated from the University of Utah with a B.A. in Mass Communication and is now a B2B writer for Business.com, Business News Daily and Tom's IT Pro. His background in journalism brings a critical eye to his reviews and features, helping business leaders make the best decisions for their companies.