Legal Risks/Implications of Monitoring/Surveilling Remote Employees

 The coronavirus pandemic in 2020 forced us to socially distance ourselves, which meant that many companies were forced to implement work-from-home policies. Many employers were hesitant to do so, though. They had never had such policies in place before, and everyone was navigating uncharted waters.

One of the main concerns employers have with remote work is tracking employee productivity. Bosses could not physically walk over to an employee’s desk or glance across a room and see them working. Some employers wanted reassurance that their employees were actually working at home, not doing laundry, watching TV, sleeping, or out of town on a vacation.

Some say employers who have hired the right people should be able to trust their employees to get their work done, no matter where they are.  And in many cases, they can.  Further arguing this point, employers with remote workers should be able to see that work is getting done and not feel the need to orchestrate what their staff is doing at home every single moment of the day.

But this is not always the case, particularly when productivity declines.  Some employers find it necessary to use employee monitoring technology to track their workers’ real-time locations and activities during working hours.

Legality of Remote Surveillance of Employees

Is this legal? It is, to some degree. There are state and federal employment laws that limit what employers can and cannot do in terms of employee surveillance. To protect your business from legal action, your company needs to have transparency in your employee monitoring practices.

When you think of monitoring, you may think of security cameras. While these may be built into company laptops, employees may also be tracked by devices and procedures such as keyloggers, GPS tracking, and audio surveillance. Some employers require employees to have their webcam on throughout the day. Others read employee emails, chat messages, and even things that are not work-related, such as social media posts.

What State and Federal Law Says about Employee Surveillance

Under Texas law, employees are protected from surveillance where they have a reasonable expectation of privacy. However, employees generally do not have a reasonable expectation of privacy against employers monitoring their use of computers, phones, and other company assets.  Even so, employers must ensure that employees are aware they do not have an expectation of privacy in their use of computers, phones, and other company assets.

At the workplace, employers are permitted to use video surveillance in public areas such as hallways, lobbies, and break rooms. They are also allowed to monitor the public social media sites of employees. On the other hand, areas where a person has an expectation of privacy, such as bathrooms and locker areas, are generally protected from monitoring.

In Texas, employers can engage in video recordings of employees without consent or notice.  However, since Texas is a one-party consent state, consent is required for audio recording if you are not a party to the audio recording.

Texas law requires employers to implement reasonable procedures to prevent the unlawful use or disclosure of employees’ “sensitive personal information,” but this law is vague. In general, though, data such as medical information, financial information, and Social Security numbers are considered private and cannot be collected or used by employers.

Title I of the Electronic Communications Privacy Act of 1986 prohibits employers from intercepting any employee communications. There are just two exceptions: consent or a valid business purpose. The employer has the burden of proving that they have an employee’s consent to intercept communications or prove they have a valid business purpose that makes this necessary.

How Employers Should Handle Remote Employee Surveillance

As an employer, if you plan to use surveillance to monitor employees, be transparent about it. Tell employees you plan to do it and explain why.   If you plan to monitor remote employees, consider include a disclosure about it in your employee handbook.  Workers should be required to sign paperwork that confirms they have been notified.

Before taking action, think about it carefully and be sure it is necessary.  While employee monitoring may be legal, it can create an environment of distrust, decrease employee morale, and increase turnover.  It can also have the opposite effect of what employers want to accomplish; it can actually decrease productivity when employees become hyper focused on the fact that they are being watched.

Contact Our Frisco Employment Law Attorneys Today

It can be challenging to manage employees who work remotely. As an employer, you must ensure that any type of monitoring you do is legal and does not run afoul of any state or federal laws.

Need help understanding employment law? The team at Simon Paschal PLLC can give you the advice and guidance necessary to effectively run your business and avoid problems.  Contact us online to schedule a consultation or call (972) 893-9340.

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