October 25, 2021

Volume XI, Number 298

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October 22, 2021

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March Monitoring Madness and Monitoring Methods

As NCAA basketball tournament season approaches, employers may be wondering if they can monitor employees at work to see how much time they are spending checking their brackets, or for other purposes. There are many reasons companies monitor employees, including boosting productivity, dissuading cyber-slacking or social “not-working,” protecting trade secrets and confidential business information, preventing theft, avoiding data breaches, avoiding wrongful termination lawsuits, ensuring that employees are not improperly snooping themselves, complying with electronic discovery requirements, and generally dissuading improper behavior.

NCAAExcessive, clumsy, or improper employee monitoring, however, can cause significant morale problems and, worse, create potentially legal liability for invasion of privacy under statutory and common law.  With new technology, there are more methods of monitoring than ever before.  Each has different limitations under the law.  Here are the top contenders in the bracket:

  1. Monitoring work email communications. Pros: generally lawful, effective. Notice requirements exist in some states (e.g. CT, DE).

  2. Monitoring internet usage. Cons: Often misleading, can be expensive.

  3. Monitoring social media. Cons: May violate state law regarding social media passwords or common law.

  4. Accessing employee cloud-based internet accounts by accessing and obtaining user name and password from a work computer. Cons: Likely to violate the federal Stored Communications Act.

  5. Tracking employee whereabouts by GPS (either a phone app or vehicle based device). Cons: Morale issues, may be invasion of privacy. (An employee in CA recently sued and reached a settlement with her employer after she was terminated for uninstalling a company-required 24-hour tracking app in her phone).

  6. Tracking employees with a Radio Frequency Identification Device (RFID). Cons: Expensive, strange, morale issues, some states (WI, ND, MO) explicitly prohibit employers from implanting chips in employees.

  7. Motion Sensors. Cons: The Daily Telegraph, a London-based newspaper, recently reversed a decision to install motion sensors at desks after employees cried Big Brother. (The employer claimed it was just seeking to monitor how many shared desks were used and not used).

  8. Video. Pros: Extremely effective in loss prevention and investigation of bad acts. Cons: Some notice requirements. Avoid cameras in changing areas, locker rooms, etc.

  9. Audio. Pros: Also effective in obtaining and preserving certain types of evidence. State wire-tap laws apply.

  10. Physical searches. Pros: Sometimes necessary, little or no expense. Cons: May violate common law right of privacy depending on circumstances.

  11. Obtaining health or fitness information. Cons: May violate the Genetic Information Act (GINA) and other laws.

  12. Drug testing. Pros: Workplace safety; Cons: expense, tightly regulated in some states.

  13. Polygraphs. Cons: Restricted by federal law and many states.

Although new technologies may be up and coming, the Final Four of monitoring methods are probably email, video, audio, and physical searches, all of which have been around for quite a while.  Always review policies and applicable state and federal law before embarking on a monitoring program and remember to monitor the monitors!

Jackson Lewis P.C. © 2021National Law Review, Volume VI, Number 53
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About this Author

John Ella, Jackson Lewis, employment contracts attorney, trade secret lawyer, drug testing legal counsel, compete litigation law
Principal

V. John Ella is a Principal in the Minneapolis, Minnesota, office of Jackson Lewis P.C. He practices in all aspects of employment law and advises clients in the areas of employment contracts, handbooks, trade secret and non-compete litigation, drug testing law, privacy law, commission claims, defamation, sexual harassment claims, employment and housing discrimination, plant closings, ERISA benefits litigation, public accommodations under Title III of the Americans with Disabilities Act, wage and hour compliance, whistleblower and Sarbanes-Oxley claims, as well...

612-341-8131
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