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Monitoring of Virtual Workers: Is it Legal?

Health & Gender Policy Brief #132 | By: S. Bhimji | September 20, 2021

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Policy Summary

Because the Covid pandemic has not ended, millions of Americans still continue to work from home. And in many cases, their companies are supplying the computers and even paying for the home internet costs. But employees should not feel elated or special; the reason companies are providing the latest PCs to employees for virtual work from home is because they can be monitored. 

Today, there are many tracking devices available that can monitor almost every aspect of the virtual worker including login and log-out times, the keystrokes, and all the websites that the employee visits during work hours. Even something as innocuous as Zoom video conferencing is being used to monitor employees. Employers can now use Zoom analytics to see what the employee is doing, what he/she is saying, and if they are on another website at the same time. So if you think you can pretend you are at the Zoom meeting and no one knows what you are doing- think again.

All over the USA, sales of monitoring spyware have tripled; both small and large businesses including financial services, IT companies, consulting firms, call firms and many more have been getting their PCs upgraded to include spyware to track employees.

Surveillance in the workplace is not new at all. For decades, hotels, banks, restaurants, and retail stores have used surveillance cameras to ensure employees are not stealing, taking unnecessary breaks, or treating customers poorly. 

The vast majority of virtual workers may not be aware that they are monitored. But the fact is that in almost every state, the employer is under no obligation to tell the employee about the monitoring.

Policy Analysis

Unlike Europe, US employers do not need to get consent from the employee for monitoring and the laws overall tend to favor the employers but do vary from state to state. 

For example U.S. Federal Telecommunications Regulation 2000, a privacy act intended to govern electronic communications, allows employers to monitor employees without the employee having given consent. However there is a fine line between legal and illegal. Only if  the employer believes that the employee is involved in criminal activity, absconding, or not being productive, do they have the  legal right to monitor that employee. However, in some liberal states (e.g. California), monitoring of employees is not permitted without consent. In other states, employers need to inform the employees that they will be monitored

How much the employer can monitor in the employee’s home still is debatable – recording audio and video in the home of the employee that does not pertain to work can run into legal issues. The other question is how much surveillance is done and how long will the data be maintained; will it  be shared with other companies?. So far all this is a grey area and Congress has not addressed the issue.

Photo taken from: Time Doctor Blog

However for years even the federal government has been placing signs and sending regular notices to all government employees that all email is government property and there is no right to privacy during electronic communications.

So what choices does the employee have?

  1. Look for another virtual job but there is no guarantee that the new employer will not track you. 
  2. Abide by the rules and work hard. This is the simplest solution. 
  3. Go back to the office and refuse a virtual job; this is only possible if there is a physical job available.

The Microsoft Approach

To ensure that the employee is not disheartened by the monitoring, Microsoft has developed an analytical tool that measures employee performance. At the end of the month, this data is provided to the worker rather than to human resources; so that workers can see what he or she needs to do to improve productivity and yet have a balance in work-life activities. 

Engagement Resources​

Click or tap on image to visit resource website.

Introduction: Privacy in the Workplace

https://cyber.harvard.edu/privacy/Module3_Intronew.html

PRIVACY IN AMERICA: ELECTRONIC MONITORING

https://www.aclu.org/other/privacy-america-electronic-monitoring

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