It might be tempting to use software to track your employees, whether it’s to increase their productivity or to figure out if you’ve been left out of the e-vite to your coworker’s big barbecue. But any employee-tracking should be conducted in a thoughtful way that navigates the complex web of federal and state regulations protecting employee privacy. These include state constitutional protections and state statutes on a variety of issues from credit reports to e-mail monitoring to drug and alcohol screening.
Private employers can legally track and monitor employees, but the right to do so is not absolute and can be subject to limitations. Two common mistakes made by employers implementing a tracking and monitoring program are failing to properly notify employees of the employer’s policies and over-monitoring employees’ private lives.
Many states require that employers who electronically monitor their employees give proper written notice of the surveillance. In Connecticut, for example, employers are required to give written notice to “all employees who may be affected, informing them of the types of monitoring which may occur.” The notice requirement may be satisfied if the employer “post[s], in a conspicuous place which is readily available for viewing by its employees, a notice concerning the types of electronic monitoring.” Connecticut employers who don’t give appropriate notice to their employees before monitoring their electronic activity could face civil penalties, up to $3000 per offense for repeat offenders.
Employers are also likely to face issues if their tracking policies extend too far beyond the workplace. For example, the New York Court of Appeals found that it was not reasonable for an employer to monitor an employee’s vehicle location by GPS during non-work hours – even though it was a company-issued vehicle. The court held that the scope of the tracking was unreasonable because it “examined much activity with which the [employer] had no legitimate concern—i.e., it tracked [the employee] on all evenings, on all weekends and on vacation.” A similar case brought by an employee in California was settled privately. To avoid similar lawsuits, employers should tailor their employee tracking protocols as narrowly as possible to only capture the information needed to evaluate employee performance and productivity. Any unnecessary tracking outside of work hours could result in liability to the employer.