7 Smart Things to Consider About Remote Employee Monitoring
Author: Helena Oroz, Brightmine Legal Editor
Date: April 10, 2023
Remote work as a viable model seems to depend on one's world of work view: do people show up as productive, motivated contributors only in the office; or, once on their own turf, do they devolve into nonproductive sham shows?
The latter suspicion seems to be the overarching reason that "productivity surveillance" is the hot thing on the workplace landscape. Employer surveys (and customer reviews of just about any monitoring tech on the market) bear this out. With monitoring software, the invisible has become visible: employers can ensure that their remote employees remain productive and employees can work where they want. Everyone wins. Right?
Everyone Is Monitoring Something
Recent surveys suggest that the vast majority of remote companies are using some form of employee monitoring. Perhaps this should come as no surprise, considering what has been termed the "productivity paranoia" associated with remote and hybrid work.
The tools available to monitor remote employees have expanded from old school email and browser monitoring to app utilization tracking, screenshots, facial recognition, keylogging, geolocation, webcam surveillance, collaboration tool monitoring (like Slack and Teams), and others.
Some tools might be used alone or together to produce productivity data, which might include things like email or call quantity, meeting duration, time spent on specific tasks or projects, or idle time. (And if none of those options provide enough data or oversight, brain productivity technology might be the wave of the future.)
Detractors argue that the invasive nature of some of these monitoring methods kills morale and fuels employee distrust. Critics also argue that productivity scoring generates performative-based activity (i.e., fake work) and inaccurate data that doesn't account for off-device work.
For some employees, those digital eyeballs may create or increase their general anxiety about work, which seems counterproductive. (The anxiety can be palpable, and you can experience it firsthand through simulated productivity tracking.)
Productivity Is in the Eye of the Monitor
Some surveys suggest that strategic employers are focused on outcomes rather than clicks or screen time, with many using Key Performance Indicators (KPIs) to assess the performance of outcomes for which a remote employee is partly responsible.
"Traditionally, employees have been measured on 'how many widgets produced in x time' - output focused and what surveillance technology is so spectacular at capturing," says Laci Loew, Senior Global Analyst, HR Strategy & Insights at HR & Compliance Center. "Yet, today's high-performing leaders and high-impact organizations are measuring productivity in terms of how valuable the employee's work is to the business - outcome focused and something that surveillance technology cannot capture."
Electronic surveillance is kind of having its Wild West moment (although certain advocacy groups are trying to make the case for regulation by the federal government). Outside of a small number of states with specific requirements for employers that monitor their employees, there aren't a ton of rules out there governing remote employee surveillance.
But there are limitations on employee monitoring under state and federal law, and plenty of potential legal ramifications for employers that:
- Fail to properly inform and obtain consent from employees.
- Fail to follow all applicable state law requirements.
- Collect too much information.
- Do not understand what their vendor is doing with their data.
- Rely exclusively on software for wage payment purposes.
So, what should smart employers consider if they want to monitor employees?
Employer Takeaways
- Determine the purpose of monitoring, and whether the data produced will be relevant to the way you work. Employers should determine whether their chosen method of surveillance is actually going to capture "productivity" in a meaningful way.
- Limit data collection to no more than needed for your chosen purpose. Employers should limit employee monitoring to work hours and collect the minimum amount of information needed. Be aware that employer surveillance tools, especially those that track employees outside of work hours, are on the radar of the National Labor Relations Board and the Consumer Financial Protection Bureau. The two agencies just signed an information-sharing agreement on March 7 and identified "employer surveillance" as an area of immediate concern.
- Inform employees about monitoring and obtain their consent. Informed consent is best practice, regardless of whether it is required under state law. Employers should explain to employees the monitoring to which they are subject and obtain their written consent to such monitoring.
- Comply with all applicable state laws. Certain states have specific requirements for employers that monitor employee email or other network activities. Some states require employers to inform employees about their monitoring practices. Employers that are subject to the California Consumer Protection Act, for example, must ensure that their notices at collection and privacy policies properly disclose their monitoring activities, in addition to other responsibilities.
- Don't rely on productivity tracking software for wage-payment purposes. If an employer relies exclusively on monitoring software to calculate employee pay (e.g., by monitoring keystrokes or camera time), "be aware that such tools could lead to costly wage and hour litigation if the employee claims he or she was working even though the tool at issue did not detect such work," says Mark Wiletsky, Partner at Holland & Hart LLP. Such lawsuits are already a reality.
- Understand what your vendor is doing with the data. "If the employer shares data with vendors in connection with its tracking program, it may be on the hook for the vendor's handling of that data - for example, if the vendor misuses it, or experiences a data breach, the employer may be liable," says Damon Silver, Principal with Jackson Lewis. To mitigate these risks, Silver recommends that employers adequately vet their vendors (e.g., with vetting questionnaires), and include appropriate data protection provisions in vendor service agreements.
- Don't swap human eyeballs (or hearts, or minds) for digital ones. Just as productivity scores won't tell the whole story, employee monitoring won't replace a competent manager or human interventions with an underperforming employee.
A Final Thought
Successful employer-employee relationships require some level of mutual trust, assumed good intent, and respect. Employers should consider whether monitoring their remote employees will ultimately foster - or diminish - such relationships.