Employee monitoring and surveillance

Protecting employer interests is important, but legal issues abound

As an employer, you likely have many reasons to know about your employees' activities while on the clock, and you may have compelling reasons to surveil their electronic activities and use of company devices as part of that. 

The prevalence of electronic monitoring has gained popularity recently, particularly as many companies have moved toward remote or hybrid work models. That surveillance may include reviewing emails, monitoring online activities, blocking certain sites, or tracking keystrokes. It may even include video surveillance or monitoring activities through key fobs, key codes or GPS devices.

"As an employer, you may want to surveil employees to identify performance issues, increase safety, limit liability, or protect your brand against misconduct that would put your company's reputation at risk," said Johns, Flaherty & Collins attorney Brent Smith who concentrates in employment and labor law. "There are lots of reasons employers monitor staff. But it's important to know the law and understand the potential risks of doing so," he cautioned. 

Compliance is key to lawful surveillance and monitoring

For employers that decide surveillance and electronic workplace monitoring are right for them, there are several laws at both the federal and state levels to be mindful of to limit the organization's potential liability. Those laws include the federal Wiretap Act, the Stored Communications Act, the National Labor Relations Act, data privacy and security laws, employment discrimination laws, and Wisconsin state privacy and wiretapping laws. 

These laws provide privacy-related protections and other limits on gathering data that could make certain monitoring or surveillance activities legally problematic. Simply put, that could place your organization in a sticky situation if your surveillance or electronic monitoring activities are called into question. 

Wiretap Act

This federal law prohibits the intentional interception or disclosure of any wire, oral, or electronic communication, so it could render monitoring employee telephone calls unlawful unless the activity falls under statutory exceptions. The legal waters can get murky, so it's generally in the best interest of most employers to safeguard themselves by monitoring only electronic communications that fall within the act's exceptions. 

Stored Communications Act

The Stored Communications Act protects data, including employee websites or emails intended to be private. Employers may be able to protect themselves from some liability through careful development of their own policies, as well as by securing employee authorization to review communications outside of the employer's system. 

Historically, employers have been held liable for a broad spectrum of practices, including accessing password-protected personal websites with passwords provided by other users or reading emails on non-work accounts on a company device. 

National Labor Relations Act

The NLRA protects employees' rights to engage in concerted activities for mutual aid and protection. This can restrict employers' monitoring activities if such surveillance is perceived to interfere with, restrain, or coerce employees in exercising their rights.

Data Privacy and Security Laws

Various federal and state laws require businesses to protect sensitive personal and financial data. In the context of employee monitoring, these laws mean employers must ensure their surveillance methods don't compromise this protected data. Any monitoring activities must be done in a way that respects data privacy and maintains secure handling of personal information.

Employment Discrimination Laws

Designed to prohibit discrimination and harassment based on race, color, religion, sex, national origin, age, or disability, employers need to be careful that monitoring activities do not invade personal privacy or lead to discriminatory practices.

Violations can be costly 

"Navigating these laws can be incredibly complex," said Smith. "It's not something to take lightly. Consulting with a trusted attorney can ensure your organization is complying with state and federal laws and thus protected from liability."

Penalties for violating these laws can be costly, according to Smith, and may include monetary damages, statutory damages, punitive damages, injunctive relief, attorney fees, and other costs. 

Employee monitoring and surveillance: tread with care

Knowing and understanding the laws that regulate electronic monitoring and surveillance of employees is essential for any business that intends to do so, but the legal privacy protections and data protections can be complicated to understand and interpret. Partnering with a trusted local attorney at Johns, Flaherty & Collins, SC, can help your company develop company policies and practices that protect your organization from liability. 

ILa Crosse employment law attorney Brent Smithnformation provided by attorney Brent Smith who focuses on employment law. For questions about employment law, contact him at 608-784-5678. 

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