How to Monitor Remote Employees Legally and Fairly
Employees Management

How to Monitor Remote Employees Legally and Fairly

Many employers are keeping an eye on their workers at working from home during the pandemic via remote monitoring technologies. These tools perform tasks like tracking keystrokes, measuring employees' active and idle time in certain applications and websites, enforcing company data security policies, and even taking photos to see whether workers are sitting at their desks at home.

But these tools aren't without legal risks. Because many workers use personal devices rather than company-owned computers at home—and use those devices to periodically connect to nonwork websites during the day—managers and companies in general do need to be aware of the legal implications of using monitoring technologies with remote workers.

There is also a need for transparency, not just for legal reasons, but for maintaining your team's trust.

Experts also say being transparent about the use of such monitoring tools not only is essential to avoiding legal pitfalls, it's also key to building trust in the workforce around privacy issues. Here we'll take a look at the best ways – for everyone – to make use of the monitoring tools.

How Many Companies Are Doing This?

During the past six weeks, almost 20 percent of organizations purchased some form of software or technology designed to track and monitor remote employees, according to data from Gartner, a global research and advisory firm. That research suggests these tools will continue to be used even as the COVID-19 pandemic recedes.

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Gartner projects 48 percent of employees will still spend at least some time working remotely after the pandemic, up from 30 percent who worked remotely at least part-time before the coronavirus crisis. The research is based on a survey of 420 HR leaders in early April, a survey of 317 finance leaders in late May and a study of 4,500 global managers and employees earlier in the year.

Explain Your Reasoning

Experts advise that managers should be clear from the start about their intentions when using employee monitoring tools. Is the purpose to benefit employees, to evaluate them or to penalize them? If the idea is to benefit employees, it's good; if it's to evaluate employees, it's potentially dangerous; and if it's to penalize them, it's probably a bad idea.

Understanding Monitoring Technology Tools

Available employee monitoring tools include everything from technology that will take photos of employees from their laptops to tools that allow workers to punch a virtual time clock to tracking keystrokes to monitor productivity levels. There is also technology that can track employee time spent on apps, websites or e-mail; gauge team productivity levels; and help enforce data security policies.

One very common way organizations use technology is to track the time remote employees spend in productive versus unproductive or "nonwork-related" applications or websites.

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For an employer this is probably great. For an employee it can feel incredibly oppressive, and even like spying. This is why it's important that the tool's reach is limited to official working hours and that it offers options for employees to 'pause' it during the day for breaks, lunches and other activities.

Legal Implications of Remote Employee Monitoring

Employers using monitoring technology for remote workers face the same legal guidelines as when using such technology in the workplace, legal experts say. But there are special legal considerations when employees use personal devices for work purposes at home.

In most instances state laws require you to protect employees' privacy rights by giving them advance notice of your monitoring. The best practice is to get employees' consent for monitoring in writing.

Such transparency is not only good legal practice but also good management practice, Research has found that when employees are surprised by the use of monitoring technologies, they get very frustrated and it impacts their morale. The word will always get out that these tools are being used, so the question is whether you want employees to learn about it from management or from another source.

You will also need to determine how far you can legally make use of these tools if employees are using their personal devices rather than company provided gadgets.

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Employees are legally generally allowed an expectation of privacy in their use of personal computers and phones unless a different company policy has been communicated to them in writing and formally agreed on.

If you're using any form of monitoring technology that affects employees' personal devices and retaining information from that monitoring—beyond information gathered when an employee's device is interacting with a corporate network—there should be a written privacy policy disclosing what the company is doing and why it's doing it.

There are also legal issues arising around the use of videoconferencing to conduct business, specifically related to recording the images and voices of employees without their permission. Organizations might use such video recordings for creating transcripts or documentation of calls or for future training purposes.

However, some wiretapping laws restrict employers from recording their employees' voices or images without their consent, and so you should also create a clear policy in relation to this.

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