Can I monitor my remote workers?
Yes. Monitoring your workforce, whether they are working remotely, or otherwise, is generally considered legal so long as it is based on valid business reasons. Employers may not violate state or federal privacy laws, however, these laws typically grant employers the right to monitor almost anything an employee does while on the clock, or while using an employer's equipment.
Figuring out what is and is not a valid business reason, and personal privacy boundaries can be confusing and worth asking a lawyer about, if you have any questions.
Do I have to tell my employees they are being monitored?
In the U.S., no federal law says employers have to notify their employees, whether on-site or remote, that they are being monitored. State laws, though, can be different when it comes to employee monitoring. For example, Connecticut and Delaware require employers to notify their workers that they are being tracked through tools such as monitoring software. Also, in California, employers may not record phone calls unless every person on the call knows about the recording.
To find out whether your state has specific laws about telling employees you are monitoring them, you may want to ask a lawyer.
When do I need my employees' consent to monitor them?
Employers may want to obtain consent from their remote employees before monitoring via video and audio recording. State laws may require consent, or notice. While employers may have a valid business interest in monitoring remote workers, when video or audio surveillance is used, remote employees have a right to know as their privacy rights are at stake, in a big way.
Even with consent, as soon as an employer knows that a phone call, for example, is personal, they usually must stop monitoring. Depending on the monitoring systems used, employees may feel harassed, or a lack of trust.
If you need help understanding when to get employee consent for monitoring, you may want to ask a lawyer.
What can I legally monitor in the remote workplace?
You may be surprised at how much employers can monitor, especially with the new technology in today's workplaces. Monitoring and recording phone calls is nearly a thing of the past with all that is done online and with computers. Employers frequently monitor the following:
1. Monitoring the employer's equipment
A company can often monitor all activities on computers and other devices it owns. This includes what programs are used, downloaded files, internet usage, stored documents, social media activity, keystrokes, logging in or out, and active or idle time. Monitoring can extend to remote workers who may use employer-owned equipment taken off-site.
Employers can typically limit access to certain websites and social media. The goal of these limits is usually to help make sure employees are working and not idle. But when it comes to social media access, there are limits. For example, most states have laws that prevent employers from requiring employees to give their usernames and passwords for social media or other online accounts.
2. Monitoring emails
Many employees also monitor emails that are sent and received on company property. Usually, any email an employee sends and receives on their employer's business email account can be monitored. If an employee gets a personal email on their employer-issued device, the employer may access and view that email, but should stop when it is clear that the email does not relate to the business.
3. Monitoring collaboration tools
In the age of Work from Home, lots of collaboration tools have become standard business tools. Workers have group chats, video conferences, and share files and ideas using a variety of online communication tools. Like web browsers and email platforms, if the employer owns or controls the tool or the employee is using it on a company account or device, all messages sent, received, and stored may be monitored. Notably, some collaboration tools can help employers monitor their staff's activity.
4. Monitoring employee surroundings
Finally, some employee monitoring softwares pull data from the room that a remote employee works in through their computer microphone and camera. This type of tracking can also pick up the activity of an employee's family. For example, if a child asks a question about homework near their parent's work computer, the software can record it.
Employers that choose to monitor their employees through webcams, or even more personally invasive means, may want to be clear about their monitoring policy. As you might imagine, this can lead to ethical and legal issues for employers. It may be wise for employers to talk to a lawyer before setting up this type of employee monitoring.
Is it legal to fire an employee if they refuse to be monitored?
As employers add or expand employee monitoring systems, some remote employees may refuse to be monitored. They may refuse even if you tell them you will only do so at specific times they agree to. But in most cases, an employer may fire an employee for failing to follow the company's rules and methods.
Although some employees may not like it, most monitoring is legal and remote employees typically cannot stop you from doing it. At the same time, monitoring too closely can lower employee happiness and trust in the company. Also, just because employers can legally monitor their employees does not mean that all monitoring methods are good for that company.
Most employers try to balance their remote employees' privacy with the need to monitor. However, a best practice if you decide to monitor your employees is to keep a record of each monitoring method in your business's Employee Handbook. This way, your team can know how you are tracking them during their working hours.
If you have more legal questions about monitoring remote employees, reach out to a Rocket Lawyer On Call® attorney for affordable legal advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.
