“Just because you’re paranoid, doesn’t mean they aren’t after you.” Joseph Heller, Catch-22

Perhaps at no time in modern history have employers seemingly had less of a grip on their workforce.  The amorphous, pre-COVID, practices of “flex time” and work-from-home have been stretched and snapped back to a point of likely no return. As it seems now in 2024, the modern post-COVID office will likely never be the same as it was pre-2020. So, how do employers gain some traction back on the critical factors of time on task and productivity of the workforce? The simple answer just might be, electronic monitoring of employees. 

Electronic Workforce Monitoring

Electronic monitoring of the workforce is commonly utilized by employers across the country, and across the spectrum of size and industry. This sort of monitoring can take the form of tracking employee internet usage (hours online and sites visited), tracking employee log on / log off times, and actual real time screen/device access, that allows employers to check exactly what employees are doing…or at least what’s on their screen at any given time. This sort of monitoring is utilized by a range of employers from accounting firms to nursing homes. This practice is also 100% legal. 

To be clear, Title I of the Electronic Communications Privacy Act, protects Americans from unauthorized recording of their communications and activities…the ECPA, commonly known as the Wiretap Act, prohibits the intentional, actual or attempted interception, use, disclosure, or “procure[ment] [of] … any wire, oral, or electronic communication.” This section also prohibits the use of illegally obtained communications as evidence in civil and criminal court proceedings. 18 U.S.C. §2515.  However, Title I includes exceptions that create a window for employers to intercept, monitor and/or record electronic activity by employees. The statute specifically allows the interception/recording and monitoring of such communications “in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service.” Roughly translated – the statute empowers modern employers to monitor employee computers, phones and other devices. Employers…i.e. “operators and service providers” can monitor and/or record virtually any computer or smartphone activity, by any employee, at any time.  The definition of what constitutes a “communication” has been stretched to include the task of logging on and logging off a device. Everyone reading this post from a work device had to do just that sometime earlier today…and will do just that perhaps many dozens of times each day. 

In case the somewhat antiquated use of the masculine pronoun in the statutory language (“his service”) wasn’t a dead giveaway…the Wiretap Act is old. It predates the ubiquity of email and the internet. It was signed into law in 1986. Those of us old enough to have lived through the mid-80s can fondly recall that we thought we were in “the information age” back then!   

So, what can employers legally do to monitor their workforce? 

The answer is: just about anything. Another question is worth asking . . . what should employers reveal to their employees about this sort of monitoring? The answer depends on how much the employer wants their workforce to know about the system or its implementation. If the employer’s goal in implementing monitoring is to maximize efficiency and prevent distractions and deviance from work – then perhaps leaving some “unknowns” for the employees could be just as effective as utilizing a blanket monitoring program. Another thing to consider is employee handbook disclosure. Many employers who wish to reference this sort of monitoring in their handbook will phrase it under the auspices of security. Other valid bases for implementation of the program, that employers can include through seemingly innocuous language in a handbook section on the issue would include: examining employee productivity, enhancing workforce performance, ensuring appropriate usage of company resources and/or liability prevention or risk management.