What did you do at work yesterday? If you are a typical office worker, it might have been something like this:
You arrived at work around 9 a.m. and used your employee ID to unlock your office. After your morning meeting, you and a coworker exchanged some notes – and a few jokes about your coworkers – via instant messenger.
On your lunch break, you may have used your laptop to research what might be causing that weird rash on your arm, and then emailed your doctor for advice. After lunch, it’s possible that you spent time doing online research for a new project, occasionally breaking to see how many “likes” your latest Facebook post had garnered.
At the end of the day – determined to win the office wellness challenge – you strapped on your company-issued fitness tracker to log your steps during your commute. Once home, you texted a friend a couple of funny shots from last weekend’s college reunion and turned in for the night.
It all sounds pretty standard, right? But would it feel that way if you knew that your employer had been watching you the entire time?
Today, technology is so ubiquitous that most of us don’t stop to think about the portals our everyday activities are opening into our lives. From tracking employees’ time to cataloguing emails, texts, and internet usage to monitoring our movements via security cameras and fitness trackers, employers are leveraging technology to gain an unprecedented glimpse into how we behave, what we think about, and even how well we care for ourselves.
While most employees assume a modicum of privacy in the workplace, evidence suggests that the expectation isn’t based in reality. It isn’t a matter of whether your employer is watching you, experts say – it’s simply a question of what it is they are watching.
From keystrokes to website visits and GPS tracking to video surveillance, employers everywhere are monitoring their employees in the name of productivity. Now, some employees and privacy experts have begun to wonder if it has all gone too far.
“If you look at employee monitoring, it started with time tracking – what time an employee came to work, how long their breaks were, et cetera,” said Baskaran Ambalavanan, an HR operations consultant with more than 20 years of experience in HR and HR technology.
“But now with SMAC (social, mobile, analytics and cloud) there are so many more possibilities and many more challenges. There are now a lot of opportunities for organizations to collect structured and unstructured data on clients and also on their employees.”
According to Workplace Fairness, a non-profit focusing on employee rights, employers can legally monitor almost anything an employee does at work as long as the reason for monitoring is important enough to the business. This includes but is not limited to installing video cameras, reading postal mail and e-mails, monitoring phone and computer usage, using GPS tracking, and more.
Under federal law, only eavesdropping is generally banned, but even then it’s only banned in certain locations, according to National Workrights Institute President Lewis Maltby. If an employer wants to place a microphone in a work space and monitor everything that is being said during the course of the day, that’s their right, he said. However, they are not allowed to listen to conversations that happen in most other areas.
“Employers can’t deliberately listen to oral communications that do not concern work,” he said. “That means that an employer can’t legally listen in on a personal phone call that occurs at work, and they can’t bug the cafeteria because presumably most of what is said in the cafeteria isn’t concerning work. These things are covered under the federal wiretapping laws.”
Additionally, Maltby said, generally employers are not allowed to put cameras in bathrooms and locker rooms. Here again there are grey areas, he said, since most privacy laws, including employee monitoring, in the United States fall under common law, meaning that judges decide their legality on a case-by case basis.
Some of the most egregious cases of employee monitoring have involved a camera, according to Maltby. He cites the example of the Sheraton Boston Hotel, which installed hidden cameras in the men’s employee locker room when it began to suspect that drug activity was occurring. While the surveillance was not illegal, the hotel was sued by employees for invasion of privacy when one of the tapes found its way into the wrong hands.
“This is a great example of a response to a legitimate concern that went way too far,” Maltby said. “There were any number of ways that they could have investigated this, but what they chose to do was to install a hidden camera in an unused locker. They never caught anybody doing anything wrong but they did have reel after reel of employees taking their clothes off. One of the tapes was left lying around, and it was picked up by an employee who turned it into the union. If that hadn’t happened, it could have just gone on forever.”
Since privacy laws aren’t well-defined, Workplace Fairness’s website suggests that a good rule of thumb for employers is to consider whether the reason behind workplace surveillance could be deemed more important than an employee’s expectation of privacy.
Maltby, for all his caution, believes that there are legitimate reasons for employers to monitor their employees, but that monitoring shouldn’t be done unless and until an employer has become aware of a potential problem.
“If an employer has a reason to believe that someone is being sexually harassed over email, they need to read the emails to get to the bottom of it,” he said. “But I think more companies should think about employee monitoring the same way the police think about a search warrant. By that I mean that there are some totally legitimate reasons to monitor your employees, but monitoring for the sake of monitoring leads to no privacy at all.”
For employers concerned about productivity or improper internet usage, Maltby suggests developing a policy – no use of social media websites in the office, for example – and investing in web access software to accomplish the goal.
“If your policy is that employees can visit any place on the web except for X-rated sites, this type of software makes it impossible for employees to visit an X-rated site. If you don’t want people to go to non-work-related sites for more than half an hour a day, the software will cut off access to those sites after someone has been on there for more than 30 minutes,” he said. “Literally, any internet policy in the world can be enforced with this type of software, and when companies use it, there is no abuse to monitor.”
Additionally, Ambalavanan recommends that organizations communicate openly with employees about exactly what is being monitored and why. In a perfect scenario, experts suggest that employers obtain written confirmation that employees understand and consent to the monitoring to avoid lawsuits down the road.
“Many companies see employee tracking not as Big Brother watching an employee but as a coach who is willing to work with employees,” he said. “There are things about monitoring that can be helpful to both the company and the employee, but it is a question of framing it, communicating it, and having policies in place for both managers and employees so that everyone understands the need and how it’s being executed. It’s about being up front from the start.”
Maltby’s advice to employees who are concerned about whether or not they are being surveilled is this: assume you are being monitored at all times.
“Employers by nature want to know everything and control everything, and that’s perfectly normal. Employers want to make sure the ink is black at the end of the year and not red. But unfortunately when I say they want to know everything I mean everything,” he said.