The increasing use of productivity-measuring tools is giving rise to employee monitoring notification laws. Legislation is gaining in the states, and Congress now has a bill.
Informing employees of electronic communication monitoring is widely considered a best practice for HR. But employee monitoring notification is not necessarily required by law, prompting a growing wave of state-by-state bills mandating written notice to workers.
Among the proponents of these laws is Illinois State Sen. Sara Feigenholtz, a Chicago Democrat, who introduced legislation late last month requiring employers to provide notice of electronic monitoring.
"The workplace has definitely shifted post-pandemic," Feigenholtz said in an interview. More employers are using technology to monitor workers, and this law is a "way for us to manage the workplace in its new form," she said.
In Congress this month, U.S. Sen. Bob Casey (D-Pa.) introduced the Stop Spying Bosses Act requiring employers to inform employees of monitoring. It also prohibits the collection of "sensitive" data, such as data collected when employees are not at work or involving union organizing.
Lawmaker interest in employee monitoring notification corresponds with the shift to remote work. One of the most consequential laws for employers is the California Privacy Rights Act, which was introduced in 2020 and took effect Jan. 1. The state law is considered an extension of the California Consumer Privacy Act to employees.
California now gives employee data "the same sort of treatment as consumer information," said Nannina Angioni, a labor and employment attorney at Kaedian LLP in Los Angeles.
It's common courtesy to let your employees know 'I have the right to do this.'
Karen YoungFounder and president, HR Resolutions
Under this law, employers have to give notice of monitoring, explain how they are protecting employee data, and give employees the right to eliminate or delete their data if they don't want the company to continue to retain it, Angioni said.
Employees have no right to privacy
According to legal experts, employees using employer-owned PCs and other equipment have no right to privacy. But it's a gray area whether employers should inform employees of any monitoring.
When it comes to employee monitoring, "it's common courtesy to let your employees know 'I have the right to do this,'" said Karen Young, founder and president of HR Resolutions, a consulting firm in Harrisburg, Pa. She said the notification should be in an employee handbook or other employee onboarding documents, but employers must also take additional steps if they monitor employees.
A company that, for instance, conducts spot checks on employee communications to ensure employees "are communicating properly with clients" should apply those checks uniformly, according to Young. She said that if an employer singles out employees for spot checks, the employer could be accused of bias.
Vermont lawmakers introduced an employee monitoring notification bill last month. Notification laws have already been approved in Connecticut, Delaware and New York.
The increase in remote work has also raised interest in tools that measure employee productivity. In his argument for his legislation, Casey cited these tools as one of the reasons for an employee monitoring notification law.
The progress of employee notification laws in the U.S.
Productivity measuring tools
Casey wrote: "As you read this document, your mouse and keyboard sit idle. But imagine that this time is tracked by your employer. If you do not resume activity soon, you could accrue points in an automated system that tracks and calculates your performance -- too much idle time and you may be penalized."
Mark Ralls, CEO and president of ActivTrak in Austin, Texas, said he welcomes the employee monitoring notification requirements proposed by Casey and state governments. ActivTrak makes tools that measure employee productivity.
"We would view that as a positive thing," Ralls said of Casey's legislation. He said ActivTrak's systems are about encouraging productivity -- not monitoring. The software can track an active window or browser tab and determine the time spent on various tasks, such as a Zoom call. Reading a news site would be considered unproductive time, "which is fine," he said. "We're not robots."
ActivTrak software allows employers to provide employees with a "personal insights dashboard" so they can see how they are using their time. Managers can use that information as a "data point" -- for instance, in a performance review -- but "it should never be the basis for making a specific decision," Ralls said.
Ralls believes the productivity data can mitigate bias. If a manager gives an employee a poor review, but the data shows that the employee is "quite productive," this could provide a reason "for HR to dig a little further" and see if there is an interpersonal conflict, he said.
Peter Cassat, a labor and employment attorney at Culhane Meadows PLLC in Washington, D.C., said the rise in interest in employee monitoring notification is a reaction to "the perception that there is just an increasing amount of personal information in the workplace that's accessible by the employer."
"It is best practice for employers, generally, to let employees know" about monitoring, he said.
Clarification: This story was updated to explain that the ActivTrak personal insights dashboard is optional for employers.
Patrick Thibodeau covers HCM and ERP technologies for TechTarget Editorial. He's worked for more than two decades as an enterprise IT reporter.
