As many businesses have shifted their workforce from the office to working from home due to the coronavirus pandemic, the demand for employee monitoring software has increased as employers with newly remote teams seek to ensure that employees are maintaining their productivity.
However, employee monitoring is a sensitive subject, and there are varying rules and regulations from state to state. The activity you can monitor is often dependent on whether the device is company owned or employee owned, whether employees work onsite or remotely, and what type of information you are trying to capture.
Federal law is relatively lenient, but many states are implementing restrictions on the type of data employers can collect.
Some states, like Delaware and Connecticut, require employers to notify employees when they are monitoring email or web activity. Others, including Colorado and Tennessee, maintain added protections for public employees. Some states also regulate what kinds of data companies collect; email communications might be OK, for example, but capturing biometric data requires the employee's knowledge and consent.
Understanding your state laws, as well as whether any new legislation or legal proceedings are likely in 2020, is critical to ensuring your implementation of employee monitoring software doesn't backfire and trigger a lawsuit.
Further complicating the issue is that many employees bring their own devices to work. Federally, employers have a great deal of latitude to monitor their own devices operating on their own network. But what if freelance or remote employees use their own devices? This case is a little less clear, and experts recommend the cautious crafting of a policy that requires employees to consent to limited data capture and monitoring (with explicit mentions of which data would be captured and for what business purposes). Failure to consent to this policy should come with a requirement for that user to work on a company-owned device instead.