US & EU Workplace Surveillance Laws: Is Employee Monitoring Legal?

What Is Employee Monitoring?

Employee monitoring refers to the practice of using various technologies and tools to track and observe employee activities in the workplace. It involves looking into computer usage, internet activity, email correspondence, phone calls, location tracking, and more to ensure productivity, security, and compliance with company policies.

Why Do Companies Monitor Their Employees?

Businesses use employee monitoring to achieve several goals:

• Better security: Surveillance tools like video cameras discourage theft, vandalism, and unauthorized access, making the workplace safer.
• Higher productivity: Tracking helps identify inefficient work patterns, allowing employers to optimize workflows and resources for better productivity.
• Lower legal and compliance risks: Tracking electronic communications helps ensure compliance with regulations, prevent harassment, and manage legal risks.
• Enhanced data security: Supervision helps protect sensitive company information by preventing unauthorized sharing or access, reducing the risk of data breaches or intellectual property theft.
• Smarter resource allocation: By tracking tasks and time spent on different activities, employers can allocate resources more effectively and provide fair evaluations based on actual performance.
• Remote work management: Tracking tools assist in managing remote teams by tracking work hours, task completion, and ensuring remote employees stay productive and connected.

What Are the Common Methods of Monitoring Employees in the Workplace?

Today, most employers have the flexibility to choose from multiple employee monitoring methods or even combine them. Here’s a list of popular options:

• Computer monitoring: Tracking software usage, websites visited, and keystrokes.
• Video surveillance: Surveillance via cameras in the workplace.
• Email and communication monitoring: Checking emails, messages, and calls.
• GPS and location tracking: Tracking employees’ whereabouts during work hours.
• Biometric data monitoring: Using fingerprints or facial recognition for attendance or access.
• Performance metrics: Measuring productivity, task completion, and quality of work.
• Badge/access card monitoring: Tracking entry and exit times within the workplace.

It’s important to note here that employee supervision may come in two shades: invasive and noninvasive. 

Invasive practices entail collecting personal information without employee consent, such as keystroke tracking, wiretapping, webcam use, and constant location tracking. While the intent often involves productivity oversight, over-supervision can breed a stifling atmosphere of micromanagement, impacting morale and company reputation. 

Conversely, noninvasive methods prioritize productivity without intruding on privacy. These include anonymized data analysis, video surveillance in public areas, and software programs, fostering efficiency while respecting employees’ privacy boundaries.

This is why it is absolutely essential for companies to take the time to carefully research and understand the related employee supervision laws.

What Are Employee Monitoring Laws?

Employee supervision laws encompass regulations governing how employers can observe and collect information regarding their employees’ activities in the workplace. These laws safeguard employee privacy while allowing employers to ensure security and productivity.

Is It Legal to Monitor Employees in the United States?

In the United States, the legality of supervising employees hinges on various federal and state laws that delineate the extent and boundaries of permissible surveillance within the workplace. 

These laws strive to strike a balance between protecting employees’ privacy rights and allowing employers to maintain security, productivity, and compliance.

United States Employee Monitoring Laws

Two fundamental federal laws govern employee monitoring in the U.S.:

• the Electronic Communications Privacy Act (ECPA)
• the Stored Communications Act (SCA)

These statutes set the groundwork for permissible monitoring practices and outline the limitations employers must adhere to while surveilling their employees.

The Electronic Communications Privacy Act – ECPA 

The ECPA regulates electronic communications interception and disclosure. It distinguishes between communications in transit and those stored on electronic systems. 

Example:

For instance, employers may legally supervise work-related communications made on company-owned devices or systems. However, intercepting personal communications without authorization violates the ECPA.

In a corporate environment where employees use company-provided email accounts, the IT department aims to implement email tracking software to prevent data breaches and enforce company policies. The ECPA governs such workplace monitoring, allowing employers to intercept communications within the ordinary course of business. In this scenario, the employer has the legal authority to access employee emails without explicit consent as it aligns with legitimate business interests, such as maintaining data security and ensuring compliance with company policies, as specified by the ECPA regulations regarding electronic communication interception in the workplace.

The Stored Communications Act – SCA

The SCA extends protection to electronic communications stored on servers or systems.

Employers can access stored communications in limited circumstances, such as when employees use company-provided resources or when investigating suspected policy violations. 

However, accessing personal accounts or private communications without proper authorization violates the SCA.

Example:

In a marketing firm, a manager suspects a data leak and considers accessing employees’ company-provided email accounts stored on servers. The Stored Communications Act (SCA) allows employers to access work-related communications stored on company servers for legitimate investigations or business purposes. However, the SCA prohibits accessing personal accounts or private communications without proper authorization. Therefore, while the manager can review work-related emails to investigate the suspected breach, delving into employees’ personal emails violates their privacy rights under the SCA.

As such, businesses operating in the U.S. must navigate both federal and state laws to ensure compliance and protect employees’ privacy rights while monitoring workplace activities.

Is It Legal to Monitor Employees in the EU?

Employee supervision within the European Union is governed by stringent regulations aimed at safeguarding individuals’ rights to privacy and data protection. The legality of supervision practices is delineated by the General Data Protection Regulation (GDPR) and other regional directives that emphasize the balance between employers’ interests and employees’ rights.

European Union employee monitoring laws

The General Data Protection Regulation, a comprehensive framework regulating the processing and protection of personal data, lies at the core of EU’s employee monitoring laws. 

The GDPR applies to all member states and dictates strict guidelines regarding the collection, storage, and usage of employees’ personal information, including data obtained through monitoring activities.

The General Data Protection Regulation – GDPR

They must have a lawful basis for processing personal data, such as:

• Obtaining explicit consent from employees,
• Fulfilling contractual obligations,
• Or ensuring compliance with legal obligations. 

Additionally, employers must demonstrate that tracking is necessary and proportionate to achieve a legitimate purpose, such as ensuring workplace security or meeting regulatory requirements.

The GDPR establishes transparency as a fundamental principle, requiring employers to inform employees about the nature, scope, and purposes of supervising activities. Employees should be aware of the extent to which their activities are monitored, what data is collected, and how it is used.

Employers must conduct data protection impact assessments before implementing extensive supervisory measures, considering the potential risks to employees’ privacy and taking steps to mitigate these risks.

Businesses operating in EU member states must adhere to these regulations to ensure lawful and ethical employee monitoring practices.

Laws about Monitoring Employees in 4 Common Practices

There are several key employee monitoring practices that most employers may implement or consider. These include:

• Electronic communication monitoring
• Internet and computer usage monitoring
• Location and biometric monitoring
• And social media monitoring

Electronic communication monitoring

Electronic communication monitoring involves observing and tracking digital exchanges such as emails, instant messages, and other electronic correspondence within the workplace.

Examples of electronic communication monitoring include:

• Reviewing company-provided email content
• Checking chat conversations on internal messaging platforms
• Tracking the usage of company-owned communication tools

This practice helps ensure compliance with company policies, maintain data security, and prevent unauthorized disclosures of sensitive information.

US Laws about Monitoring of Emails and Instant Messaging:

In the United States, the ECPA regulates the interception and disclosure of electronic communications.

However, accessing personal communications without authorization violates the ECPA.

GDPR Rules about Monitoring of Emails and Instant Messaging:

Employers must inform employees about the monitoring scope and purpose while ensuring it aligns with GDPR principles of necessity and proportionality.

Internet and computer usage monitoring

Monitoring internet and computer usage entails tracking employees’ activities while using company-provided devices or networks.

Examples include:

• Observing websites visited
• Applications used
• Time spent on various online activities

Employers may deploy software to monitor browsing history or track the usage of specific applications to ensure productivity, enforce acceptable use policies, and protect against security threats like malware or data breaches. This helps companies manage network resources efficiently, maintain cybersecurity, and enforce compliance with workplace guidelines.

US Laws about Internet and Computer Usage Monitoring:

In the US, monitoring internet and computer usage typically falls under company policies, and there are no specific federal laws governing this practice. However, employers must inform employees about monitoring activities to avoid violating privacy rights.

GDPR Rules about Internet and Computer Usage Monitoring:

Employers must clearly communicate monitoring policies, ensuring compliance with GDPR principles of fairness and transparency.

Location and biometric monitoring

Location and biometric monitoring involve tracking employees’ physical whereabouts and using biological characteristics for identification or access purposes. 

Examples of location monitoring include using GPS to track company vehicles or devices issued to employees, ensuring they adhere to designated work areas or schedules. 

Biometric monitoring encompasses using fingerprint or facial recognition for access control or attendance tracking.

These measures aim to enhance security, manage employee attendance, and optimize operational efficiency. 

US Laws and Legal Considerations about GPS Tracking and Biometric Data Collection:

In the US, GPS tracking and biometric data collection are subject to state laws and may require employee consent.

Biometric data collection falls under various state biometric privacy laws, and employers must comply with these regulations.

GDPR Rules and Legal Considerations about GPS Tracking and Biometric Data Collection:

Employers must demonstrate a lawful basis for such monitoring and ensure adequate data protection measures.

Social Media Monitoring

Social media monitoring involves tracking and observing employees’ activities on public or private social media platforms.

Employers may track public information, such as posts, comments, or profiles, to gauge employees’ online behavior or assess their professional conduct outside of work. 

However, accessing non-public or restricted social media content without authorization is typically prohibited.

Employers might use tracking tools to ensure compliance with company policies, protect the company’s reputation, or prevent potential security risks. It’s crucial for employers to balance supervision practices with respect for employees’ privacy and avoid discriminatory actions based on the information obtained from social media monitoring.

US Laws about Monitoring of Employees’ Social Media Activities:

However, accessing non-public information without authorization or in a manner that violates anti-discrimination laws is prohibited.

GDPR Rules about Monitoring of Employees’ Social Media Activities:

Employers must balance legitimate interests with employees’ rights, ensuring transparency and fairness in these practices to comply with GDPR principles.

Best Practices for Implementing Employee Monitoring

Establish clear supervision policies

Implementing employee tracking begins with establishing transparent and comprehensive monitoring policies. These policies should outline the specific activities, the purpose behind the supervision, and the potential consequences of policy violations. 

For instance, a tech company may draft a policy outlining that all company-issued devices and communications are subject to monitoring for security reasons. The policy specifies the types of tracking tools used and the data collected, ensuring employees understand the parameters of monitoring within the workplace.

Obtain informed consent

Seeking informed consent from employees before implementing tracking measures is critical. Employees should be informed about the types of monitoring used, the data collected, and how it will be utilized. 

An example could be a marketing agency introducing a new email monitoring system. Before its implementation, the agency conducts a session informing employees about the need for monitoring to protect sensitive client information. Employees are provided with detailed information about the type of data being tracked and its usage, and they’re asked to provide consent before the system is put into effect.

Balancing privacy and productivity

Striking a balance between monitoring for productivity and respecting employees’ privacy is crucial. Employers should focus on monitoring activities directly related to work responsibilities, avoiding unnecessary intrusion into employees’ personal lives. 

Additionally, providing avenues for feedback or addressing employees’ concerns about monitoring practices fosters a more respectful and considerate workplace environment.

Consider a logistics company implementing GPS tracking for their delivery vehicles. The company sets the tracking to operate only during work hours and routes, respecting employees’ privacy outside of work. This approach ensures productivity by optimizing routes while safeguarding employees’ privacy during personal hours or off-duty periods.

Implementing these best practices ensures a harmonious integration of monitoring measures into the workplace. Clear policies, informed consent, and a balanced approach to privacy and productivity are instrumental in fostering a work environment that values both employees’ well-being and organization’s goals.

To Sum Up

Workplace employee monitoring involves tracking various activities for security, productivity, and compliance.

• Common methods include computer tracking, video surveillance, email monitoring, etc.

• Laws like the ECPA and SCA (US) and GDPR (EU) set boundaries, balancing privacy and employer needs.

• Each supervision method has legal considerations under US and EU laws.

Establish clear policies, seek consent, balance privacy and productivity for a respectful workplace.