Out of Sight is Not Out of Mind – Monitoring Workers Working From Home

Just over a month ago, we provided a high-level checklist to help organizations think about critical issues as employees begin working from home to reduce the spread of COVID19. Consistent with “shelter-in-place”/”stay at home” orders, millions of workers that can are now working from home. However, out of sight is not out mind as many organizations want to be sure these workers remain productive. Periodic office visits to chat are not an option right now, but spyware and keylogging technologies are. Some employers are considering these technologies as they balance employee privacy with the need to manage their team and monitor productivity.

Distractions are easy to come by these days – the daily Gov. Cuomo briefing, kids also “working” from home, the latest firetruck birthday party, and the status of toilet paper deliveries.  For many workers, the idea of telecommuting itself is a distraction as they simply are not used to it on a regular basis. These and other distractions raise employers’ suspicion that workers are not being productive or as productive as they could be. But, productivity may not be the employer’s only goal. Protecting trade secrets, avoiding data breaches, finding ways to make remote work easier, and generally dissuading improper behavior are just some of the other drivers for increasing surveillance on remote workers.

Excessive, clumsy, or improper employee monitoring, however, can cause significant morale problems and, worse, create potential legal liability for privacy-related violations of statutory and common law protections. Advancements in technology have made it easier to monitor remote employees, and by extension easier to violate the law for employers that are not careful.

Spyware and keylogging are technologies that have been around for some time and can be attractive options for employers. In general, spyware is software that enables a user to obtain covert information about another’s computer activities by transmitting data covertly from their hard drive. This information could include screenshots from the other user’s computer. Screenshots could include, for example, text of “private” messages the employee believes she is sending to a social media friend. “Keyloggers” can be devices but are most often software designed to monitor and log all keystrokes. Like spyware, keylogging can covertly track a user’s keystrokes and obtain in the process private account credentials or confidential communications, and transfer that information to another computer.

This level of surveillance raises a number of legal and employee relations risks. Here are just a few.

What can organizations do?

It may be that this high level of remote work will continue for a while, or considering this forced experiment, certain organizations will realize that they can remain very productive in some or all parts of their business while deriving enormous savings from utilizing this new “workplace.” Either way, managing that work will raise new challenges for management. When more advanced monitoring and surveillance tools are deployed, organizations need to plan carefully, have the right team in place, review policies and applicable state and federal law, and be prepared to address problems when they arise.

Jackson Lewis P.C. © 2023
National Law Review, Volumess X, Number 118