Understanding the legality and ethics of bossware
The rise of “bossware” — software and hardware tools designed to monitor employees’ every move — has ushered in a new era of workplace surveillance. From keystroke tracking and webcam activation to wearables that monitor biometrics, this technology is fast becoming a fixture in hybrid and remote work settings. For employers, these tools may seem like a practical solution to measure productivity. But from a legal and ethical perspective, bossware is a minefield.
What the law says — and why it’s not keeping up
Workplace surveillance is not inherently illegal. In fact, employers have broad leeway under U.S. law to monitor employees on company devices and during work hours. But legal boundaries do exist — and they’re tightening in response to growing concerns.
That’s especially true when it comes to health-related data. The Americans with Disabilities Act only allows medical examinations when they are directly related to the job and necessary for legitimate business purposes. According to a December 2024 EEOC fact sheet, collecting biometric data via wearables (like heart rate or fatigue levels) can constitute a medical exam. Employers who use this data to make employment decisions risk disability discrimination claims.
Likewise, surveillance that disproportionately targets certain groups, such as pregnant workers, people of color, or union supporters, could violate Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and Section 7 of the National Labor Relations Act.
Simply put: There is no high-tech exemption to civil rights law. Monitoring practices must be neutral, job-relevant, and uniformly applied.
The ethical fallout: trust, morale, and productivity
Even if a surveillance program clears the legal hurdle, it may still fall flat on the human front.
Employees who know — or suspect — they’re being watched are more likely to feel anxious, resentful, and disengaged. Bossware undermines trust, and trust is a cornerstone of a productive workplace. Studies show that excessive surveillance can even reduce productivity and increase turnover — the opposite of what most employers intend.
According to a 2021 survey by the Harvard Business Review, more than 50% of employees who knew they were being monitored reported heightened stress levels and a decrease in trust toward their employer. Similarly, Gartner’s 2020 ReimagineHR Employee Survey found that organizations using heavy surveillance technologies saw a 28% decrease in employee engagement and a 25% drop in retention.
Worse, many companies fail to disclose monitoring practices or bury them in boilerplate language. That can lead to significant blowback, both in employee relations and in the courtroom.
Smart employer practices: A legal and ethical checklist
If you’re considering using bossware, or already are, here’s how to reduce your legal risk and maintain a healthier work environment:
#1 Be transparent
Inform employees — clearly and up front — about any monitoring. Specify what’s being monitored, why, and how the data will be used. Vague or buried disclosures won’t cut it.
#2 Evaluate business necessity
Only collect data that is truly relevant to job performance. Avoid intrusive metrics like stress levels, heart rates, or personal phone calls unless absolutely essential to safety or function, and document your rationale.
#3 Apply policies consistently
Do not single out specific employees or groups for surveillance. Doing so could give rise to discrimination or retaliation claims.
#4 Respect off-the-clock boundaries
Monitoring employees outside of work hours, or using software to track nonwork activities, can violate Wisconsin's privacy laws, open employers to civil liability, and is almost always a bad idea.
#5 Limit retention and access
Store collected data securely, retain it only as long as necessary, and limit access to those with a legitimate need. Avoid AI-based risk scoring or predictive analytics unless you fully understand the legal and ethical implications.
#6 Include legal counsel and HR in the loop
Any surveillance policy should be developed in consultation with your legal and HR teams to ensure compliance with federal, state, and (if applicable) international laws like the GDPR.
Balancing oversight with trust
As technology evolves, so too must our approach to managing people. Surveillance may offer short-term control, but trust offers long-term value. Employers should think carefully before trading one for the other.
The best path forward? Strike a balance. Use tools that support — not surveil — your workforce. And let your policies be guided not only by what is legal but also by what is right.
