How to Know When Employee Monitoring Goes Too Far

Here’s what employers need to know about laws, software, and best practices to ensure they’re monitoring workers professionally.

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With the rise of remote work came a rise in employee monitoring technology. Without the ability to hear the office buzzing with productivity, business leaders and managers turned to software to assure the remote workforce was on the job when on the clock.

Pre-pandemic, the American Management Association reported 80% of major companies monitored internet usage, email, and phone calls their employees made. In today’s remote/hybrid workspace, that number is probably much higher.

Most employees know, or are warned, their company computer can be monitored at any time. In some organizations, scanning processes use AI. Bots scan all correspondence for keywords considered inappropriate — discriminatory, harassing, or otherwise. They examine websites employees access on company-owned equipment, including phones.

While on company time and company equipment, most employees have no expectation of privacy. When they work remotely, they may be surprised to know this might not change.

Staff members who use their personal tech for work may think ownership changes access, but it does not. There are few laws that govern employee monitoring, but they generally favor the employer over the employee.

What laws govern employee monitoring?

The Electronic Communications Privacy Act of 1986 seems dated for today’s tech-heavy workplace, but it’s the most commonly recognized law that applies to employee monitoring. While it prohibits some incursions, businesses can monitor staff if:

  • the purpose is legitimately needed by the company — like monitoring customer service phone calls, which is why you’re warned calls may be monitored or recorded;
  • to prevent harassment and illegal activities; or
  • to track productivity.

If the company owns the system, employees can be monitored — even on their own equipment. As long as the worker is accessing the company’s network, they can be surveilled under the Act.

Other portions of the legislation center around privacy in restrooms, locker rooms, and changing areas — generally prohibiting videotaping in these locations.

How far can employee monitoring go with technology?

Technology has taken employee ‘supervision’ to new heights. Gone are the days of keeping your office door open or walking down the aisles. Today’s employee monitoring digs deep, sometimes too deep, into what staff members are doing and when.

Employees can be monitored whenever they connect to a company network, but some software goes even further. When employers require staffers to download software to access networks or complete work, they may be getting more than they bargained for.

Like so many other things we download carelessly, work software typically warns employees their company will have access to internet and app usage; emails; screenshots; phone, video, or audio usage (including recordings); GPS; and location tracking. All of these seem to be reasonable business needs.

Few of us read the fine print, but there’s often more access allowed — who reads the Terms of Service? Whether the company is using software to monitor or the app is using it to collect marketable data, there’s a chance access is granted for:

  • Websites and browsing history
  • Length of time and frequency visiting websites and apps
  • Words typed and keystrokes
  • Instant messages and other communication
  • Files accessed
  • Contact information
  • Photos, videos, and audio recordings

Employee monitoring vs. employer micromanaging

When managers are hovering, they can read a worker’s body language to see if they’re being intrusive: with technology that’s not the case. While most employees understand they are at work, excessive monitoring can reap negative results.

Rather than keep performance on track, there may be resentment that translates into absenteeism, distrust, low morale, and even churn. No one likes to be micromanaged: technology takes micromanagement to new heights and can even bleed outside the workplace.

The challenge for business is to use monitoring for specific tasks, and no further.

A survey from Clutch in 2020 found 30% of workers were unsure whether their company used monitoring software. Disturbing findings were 22% of 18 to 34 year-old employees; 31% of 35 to 54 year-old employees; and 25% of those 55 and up were concerned about their employer having access to their personal information via monitoring software. These pre-pandemic numbers may have increased along with monitoring use.

The challenge for business is to use monitoring for specific tasks, and no further. Evaluating data received must be focused on performance and professional issues alone. Everything else that may have been collected will need to be ignored. That can be difficult, but not impossible.

How do you know when monitoring has gone too far?

Employee ownership is the key to high engagement. Surveillance tools can undermine ownership. They may message mistrust, and can turn otherwise great employees into workers more concerned about being watched than getting the job done.

Your first clues may be a downturn in performance areas, or an uptick in absenteeism or turnover as a result of disproportionate employee monitoring.

Look for signs monitoring software is going beyond the call of duty. Are you capturing more personal information than business?

If the employee is spending their day on an eBay bidding war, you’re right to be concerned. If they’re not, you may be collecting intrusive data. Here are things to watch out for, depending on the tech:

Screen capture concerns

Screen capture software lets you know an employee is on task. It can also show an employee has multiple tabs available. Simply seeing the tabs doesn’t automatically mean the employee is non-productive.

They may have Facebook open, for example, because their children use its Messenger software in the event of an emergency. Employees may have opened non-work tabs during lunch or break times and forgotten to log out.

If employees use a personal device, their default opening screens could include social media pages.  If the software captures open social media, gaming, or other non-work related tabs as a screenshot, be concerned. However, if the tabs alone are what’s captured, you may not have a non-productive employee.

Hint: if capture software takes a screenshot on a regular basis, it’s not hard for employees to beat the system. An alarm that sounds just before the photo is taken is an easy way to make sure to switch to the right screen at the right time.

Email evaluations

Monitoring employee emails is standard for many businesses, but few do it manually. Software generally scans text for keywords that are inappropriate, discriminatory, or harassing. To delve deeper, customization is required.

An organization may be using advanced email monitoring to protect proprietary information, for example. If employees log into their personal email accounts, you won’t want to gain access to the details.

Internet usage

Most employees know internet use is being monitored, especially on company tech. If you have it engaged, technology is looking to make sure employees aren’t on websites that are not work-related or not appropriate. It can also scan searches and keywords.

When employees use their own equipment, you should have less ability to monitor what they’re looking at outside of business hours. However, depending on the surveillance software, it may be out of your control.

Whenever employees download software — even to access your databases — there’s a chance they’ll allow access to their personal data. If you’re using a 3rd-party monitoring software, make sure you know what data is collected.

If the software captures everything while the employee is logged on to company systems, make sure to remind them to log off before doing any personal online activity.

Keylogging software

This technology measures and tracks keystrokes an employee makes on their computer. For productivity purposes, it’s able to discern if workers are keeping pace with tasks.

Unfortunately, it doesn’t differentiate between the employee who is transcribing difficult-to-read or hear text and one who is transcribing something clearly legible or audible. These staff members may both be top talent, but the numbers don’t necessarily reflect that.

Another downside of this tech is it may be tracking more than the number of keystrokes: it may track the data itself. That might include passwords employees use to log in to their personal accounts while at work.

Social media monitoring

Many organizations monitor potential new hires’ social media to look for red flags in a candidate. Others add periodic monitoring of workers’ social media accounts for the same reason. Whether it’s pre- or post-hire, social media monitoring has become common in the workplace.

Companies that screen social media accounts periodically may find it a best practice to use a 3rd-party provider. As you screen to make sure your employee isn’t posting ‘how to make a bomb’ videos, you may find information about their health, for example, you shouldn’t see. A screening service only notifies you of potentially harmful posts and videos and screens out anything else.

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How do we make sure we’re not overstepping while monitoring?

There are ways business can monitor professionally. If you are planning to begin monitoring, involve staff members in the decision-making process. You’ll want to look for tools that gather the information you want and nothing more.

The more transparent you can be about the process and its execution, the better. The more employees are involved with the planning and rollout, the more comfortable they may be with the tool(s).

There are ways business can monitor professionally.

Notify employees what’s monitored and why. That may be emails to keep the workplace free of discrimination, for example, or keystrokes to maintain productivity.

There should be a solid, business-necessary reason to use this type of technology. If you can’t translate the professional need, you might want to reconsider using it.

Don’t monitor personal devices, or, if you have to, do so with limited incursions. Employees who work remotely using their own equipment aren’t the only ones to consider. Many employees access work emails or databases through their phones: this can open a vulnerability to track personal as well as professional data.

Choose technology or software that doesn’t cross the firewall into personal space, if you can. If not, remind employees to log out of business accounts whenever they’re off work or taking a break. This should stop you from learning they’re livestreaming Fuller House during lunch.

Take care when using monitoring tools so they don’t backfire

Open access to the collected data, if possible. Some software lets workers track the same data provided to their employer.

If you are using monitored data to discuss problem areas, be specific. Share the screen capture in question or the email that was flagged. Give the employee an opportunity to explain or refute the data before you take any action.

When business uses monitoring tools to protect employees or performance, they need to take care it doesn’t backfire. There is legislation pending in several states that outlines parameters on how and when employers can monitor staff.

A best practice is to provide workers with information and fair warning of what is being watched, by whom, and when.

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