The work from home wave has fueled an explosion of digital tracking. Here’s what you need to know about the bills pertaining to employee surveillance tools.
Lawmakers in 5 states think that unbridled, 24-7 technology in the hands of employers puts workers’ privacy and well-being at risk. So, they proposed bills in their state legislatures to make employers more accountable for digitally “spying on,” or surveilling, employees.
Central to these legislative proposals is protecting employee data, as well as the massive use of tracking devices, productivity applications, data collection and software programs in surveilling workers during their on- and off-duty hours. These and other digital mechanisms can detect when, how fast, and how much employees work — often without their knowledge.
With greater access to technological tools, employers reportedly track and spy on workers more than ever before. Now a handful of lawmakers are ready to rein in this activity with legislation that goes beyond current employee privacy protection laws.
California’s Workplace Technology Accountability Act bill
California Assemblymember Ash Kalra introduced the Workplace Technology Accountability Act on April 18, 2022, to rein in what he identifies as “digital spying” by employers.
Employee data redefined
The bill, AB 1651, limits employers’ and vendors’ use and collection of employee data, which is key in digital monitoring. The bill defines employee data as:
“…any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular worker, regardless of how the information is collected, inferred, or obtained.”
Data includes information relating to employees’:
- Personal identity
- Health and wellness
- Medical status
- Workplace activities
- Online information
Employers that collect employee data also must tell workers:
- How they plan to collect and use the data, at the time or before it’s collected.
- The specific categories of employee data they collect.
- The purpose for collecting or using the data.
- Whether and how they will use the data to make or assist in making employment-related decisions.
- Whether they will disclose or transfer the data to a vendor or other 3rd party and the vendor or 3rd party’s name and purpose of the disclosure or transfer.
- If and how the data relates to the employees’ essential job functions.
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More employee data access protections
California’s bill also gives employees the right to access the data employers collect on them and correct it, if necessary. If the information proves to be incorrect, employers must investigate the matter.
The bill further restricts the digital monitoring of workers by preventing employers from:
- Monitoring workers while off-duty, on their personal devices, or in such private areas as bathrooms, cafeterias, or locker rooms.
- Monitoring employees’ facial recognition, emotions, or walking gait, for example.
- Using algorithms to decide whether to punish or fire employees.
Employers also must formally assess the impact of monitoring employees.
To date, the bill remains in the Assembly’s Committee on Labor and Employment.
Other states’ employee privacy bills similar to California’s
The following states have similar bills to California’s:
Connecticut. The Connecticut Data Privacy Act (CTDPA) becomes effective on July 1, 2023.
New York. The New York Privacy Act, Senate Bill S6701A, is in committee.
Delaware. Legislators passed Bill 357 on May 10, 2022, and are waiting for the governor to sign the bill.
Virginia. Senate Bill 764 is an amendment to a previous bill.
Tactics of high-tech employer surveillance tools
Advanced technology surveillance tools allow employers to:
- Measure computer keystrokes and mouse movements.
- Use webcams to photograph computer screens, in certain cases as frequently as every 5 minutes.
- Monitor workers’ communication, email, and social media accounts.
- Deploy artificial intelligence (AI) to detect when workers are eating or away from their desks during work hours.
- Allow employees “break” buttons to click so they can explain absences like water breaks or bathroom visits.
Remote work triggers more digital surveillance
The work from home (WFH) wave that the pandemic ignited also fueled more digital “spying” on employees. The Association for Computing Machinery called the rise in digital tracking of remote workers in 2020 an explosion.
The work from home wave that the pandemic ignited fueled more digital “spying” on employees.
Research from global business consultant Gartner found that 60% of employers with at least 1,000 workers were using digital surveillance by the end of 2021, compared to 30% of employers before the pandemic. As COVID-19 peaked — forcing scores of employees to WFH — productivity-anxious employers set up tech-driven surveillance in home-based workspaces.
Now that more remote workers have returned to the office, either full-time or under a hybrid arrangement, companies and small businesses (SMBs), in general, must wait to see if more lawmakers introduce tech accountability legislation.
The fallout of workplace monitoring technology
The Washington Center for Equitable Growth describes workplace monitoring as the new norm for employees. According to the nonprofit and grantmaking organization’s 2021 research report, digitally monitoring employees puts them at risk for exploitation and powerlessness.
Other opponents of digital monitoring believe it creates the following problems for employees:
Racial bias. Facial recognition may fail to recognize Black employees accurately, leaving them exposed to discriminatory employment practices.
Digital errors. Software programs can mistake the absence of keyboard clicks and other computer-related tasks for idle time.
Emotional tracking failures. Emotional recognition technology, which monitors employees’ voice tones, facial expressions, and speech patterns when interacting with customers, is scientifically unfounded.
Wage-based discrimination. Low wage-earners frequently work in in the most digitally monitored, productivity-focused industries, including warehouses, delivery services, and transportation.
Safety concerns. The high-tech monitoring of employees in productivity-driven workplaces may make them more accident-prone, as they hustle to meet company quotas.
On-the-job stress. Employee monitoring is stressful and threatens workers’ physical and mental health.
The case for digital employee monitoring
Ending or rolling back digital employee monitoring to avoid coming up against tech accountability legislation may be unwise, Marlene Allen Murray, an attorney at Fennemore Craig, told Workest in an email interview.
“Employers have a legal responsibility to monitor employees, since they are vicariously liable for [employees’] actions,” Allen Murray noted. She added that with the rise in remote working, employers face many challenges in making sure employees are performing their jobs and in being cautious about not invading their privacy or damaging their morale.
The HR Policy Association (HRPA) criticizes California’s bill for its restrictions on using what the organization calls HR technologies to monitor and collect employee data.
HRPA also criticizes the bill for compelling employers to provide and correct data on workers’ request, ban AI’s use under certain conditions, and expose HR technologies to “lengthy audits by independent assessors.”
Workplace surveillance policies: the takeaway
Although few states currently have technology accountability legislation as stringent as California’s, employers should be ready with policies to protect the workplace while supporting employees, said Allen Murray.
“Employers should develop a good surveillance policy within legal boundaries to protect against the misuse of the company’s confidential information,” advised Allen Murray. “As long as employees know they are being monitored, and the employer’s expectations are known to the employees, monitoring can be a benefit to both the employer and the employee.”