At the Dentons Davis Brown annual labor and employment law seminar last month, employers discussed a large array of topics, many of which were issues that occurred during COVID or were pre-existing but were exacerbated by COVID. One such issue is employee monitoring. Employers normally monitor employees extensively from timekeeping, project billing, and performance evaluations, but the explosion of remote work during COVID created a lucrative market for more extensive monitoring processes.

Monitoring can take a number of forms from increased project oversight to geotagging, attention productivity measures (tracks speed, screen activity, and if you navigate away from certain things on your screen) to screen mirroring (the remote screen is mirrored onto another screen or another system) as well as a wide array of other processes and technologies. A number of employers also reported greater use of other long-standing processes such as video monitoring and reviewing customer calls.

Internal public relations and risk mitigation go hand in hand. You cannot research the monitoring of employees without running into a large number of articles about how employees feel about monitoring. If you want a summary of a few thousand articles - employees don’t like it very much. 

What does an employer do about the disconnect between the need to monitor work and the employees' dislike and sometimes active disdain for the “rules.” When employees don’t understand or agree with the “why” this frequently leads to employee “workarounds” to escape the process. For every piece of technology, someone will create a hack.

Understand why you are monitoring

Don’t set up a system without clearly understanding what you want from it. You can get software that tells you if an employee is away from the screen for more than 30 seconds but what are you going to do with that data? Discipline? Terminate?

There are a lot of good reasons to monitor. To ensure client confidentiality you monitor access. To ensure employee safety, you might geotag and provide other means to meet your OSHA obligations, such as to assist with safety in remote locations including customer homes for service industries like telecommunications and home health. You might have video monitoring to guard against theft or have other processes specific to your industry or company. Know why you want to monitor, and what you will do with the data. It’s also critical to consider what success looks like with the job. If you don’t know what success is, you can’t always measure failure.

Have a plan for data storage, retention, and use

Once you collect data someone is going to want to look at it. Horror stories about screen mirroring capturing personal data - such as bank account information which is then accessed by other employees – abound, all of which create a significant privacy issue. If you video the parking lot and there is an accident, someone will want a copy. Will you provide that to the public? Law enforcement?

Remember, if you are a public entity this type of data is, in many instances, a public record. How will you store the data? How long will you keep it? The collection of data can quickly outstrip your storage capacity. However, if the data is used in a termination, there is a video of an accident or assault or something similar, you will need a method to preserve the data for an appropriate amount of time to mitigate litigation issues. If you use biometrics, depending on your state, very specific rules apply to the collection, use, and storage of the data as well as its destruction.

Provide notice

Is what you are collecting legal? In Iowa, one party must consent to things like audio recording. Almost everyone has had the customer service call experience where “this call may be monitored for quality.” Other forms of monitoring such as keystroke logging do not require consent. Employers are on less complicated legal grounds if employees know the nature and type of monitoring, employer expectations, and have signed an acknowledgment. Be clear, be specific, and provide notice to employees and customers to avoid issues in a rapidly evolving area.