License to monitor

Recently (Most Interesting HR Stories of the Week), we brought you news that a US-based company was fined $50,000 for insisting that one of its Netherlands-based remote workers have their computer webcam on all day.

The aim was to ensure they were ‘working’ during official work hours. But a Dutch court found that such oversight was ‘disproportionate’. It also found that it was a violation of that worker’s human rights to be monitored in this way all day long.

But at the same time as this case was going though, legislators have been making it easier for employers to monitor their US-based staff – by simply insisting that they give staff prior written notice upon hiring (and then annually) about the types of electronic monitoring that may occur.

The new legislation in question (Senate Bill S2628), applies in New York State at the moment, but commentators suggest this new law could start a national trend – especially as it’s one of the most easy pieces of legislation to comply with.

To discuss what this new law means, and its prospects for other employers, TLNT sat down with Peter Glennon, founder, The Glennon Law Firm, P.C. – a Rochester-based practice serving clients throughout New York state on matters of business and employment litigation:

Q: Can you explain what this new law is, and what it covers (including fines that firms might incur)

A: “New York State law now states that employers must provide written notice to new hires that the employer may be monitoring their use of telephones, internet usage, and email, and any other electronic communications, including Slack or Teams, for example. Employers must also post such notices in a conspicuous place in the workspace for all employees to see. Failure to do so could result in fines. The first fine is capped at $500; the second at $1000, and third at $3000. Only the State Attorney General may enforce the law.”

Q: What’s the background to this law coming into effect – ie has there been a general anti-oversight movement?

A: “New York employers have always had the right to monitor employee electronic communications. This law appears to be an attempt for the state to catch-up with the electronic times and remote work environments that have proliferated since Covid-19. This falls under “privacy” laws. It doesn’t say the employer can’t monitor; it says that employees have to be told that employers may monitor.

Q: Does this materially change the employer-employee relationship? What, for instance, if employees don’t want to be monitored? Do they have any ability to refuse it?

A: “I don’t think it materially changes the relationship. Employees have long known that their communications may be monitored. Some may have been offended when they get caught doing or saying something that they were not supposed to do; but most would have known this was a risk. Several previous cases discuss, for example, that the email system belongs to the employer, not the employee. So, If anything, this only aides employees by compelling the employer to communicate (if they haven’t already) that they may monitor the employees.”

Q: Is the broader significance of this, that employees are increasingly wary of monitoring, and employers may now think twice about doing it?

A: “No. Employers won’t think twice about monitoring. I actually think they will increase monitoring now, particularly due to remote/hybrid work environments. Most companies have software on employee computers to track what and how much work is done per day. This is not new technology, it is rather a topic brought to the forefront of discussions now because employees working from home are no longer visually supervised, so the electronic monitoring is a trade-off.”

Q: Do employers have justification to monitor?

A: “Yes. Employees use employer resources to complete work for the employer. If they spend two hours per day shopping online or planning dinner, or speaking to friends and family on the telephone, then they are not performing the work for which they were hired and they are using employer resources, which further harms the employer. Employees have their own smart phones mostly today. Any personal actions should be done on personal equipment. But employees are now entitled to be notified that they may be monitored. With hybrid and remote work now, the employee is trusted to produce. But if they are not under the supervision of a person, then computer/electronic monitoring is needed.”

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Q: What legal footing do employees have if they don’t want to be monitored (if any?)

A: “Employees do not have any legal footing not to be monitored by employers on employer equipment during work hours. If an employer sought to track or monitor the employee communications on personal equipment or otherwise track an employee outside of employer resources outside of work, then the employee has civil privacy, harassment, and stalking laws to protect them. It’s worth noting that in some workplaces, they may not have ever really thought about whether they monitor email or not, and a law like this will spur some conversations about what the policy ought to be. But at a time when employers are competing for a tight labor pool, some of them may not want to craft intrusive policies that could scare off potential hires.”

Q: Isn’t monitoring all rather old-fashioned, especially as we’ve embraced remote work? Does monitoring feel like going back to ‘old ways’ again?

A: “Monitoring has always been around – initially by people/supervisors; then electronically. The only change is the proliferation of remote and hybrid work, which requires employers to find different ways to ensure that production moves forward. Electronic monitoring, which has been around for a long time, is just more necessary for employers now. Remember, this may also help employees under wage and hour laws. If employees are working and not getting paid for their work, there may be evidence of this from employer monitoring systems, which benefits the employee in arguing or litigating for wages due and owing them.”

Q: Can there be a better balance that can be struck, do you think?

A: “Companies could improve work cultures based on trust, hard work, and integrity. But as long as people are involved, there will always be poor performers and managers who don’t trust employees.”

Q: What’s the likelihood this law could be copied by other states?

 A: “With New York is requiring this notification, I expect other states will follow suit, especially since it’s fairly easy for employers to comply with the law. Other states, including Connecticut and Delaware, have already led the way with these laws. New York is following. More may pass or modify laws.”

 

 

Peter Crush is the interim editor of TLNT. He’s an award-winning journalist based in London, and he writes exclusively about the ever-changing world of work.

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