The explosion of workplace surveillance that followed millions of workers to their home offices during the pandemic has opened the door to a massive question of workplace and employee privacy. California telecommuters should be familiar with the laws that protect their rights in the workplace, even when that workplace is their own home.
How Are California Employers Monitoring their At-Home Workers:
Pre-pandemic, many managers would walk through the office, dropping in on team members periodically to check in on their staff. Since the pandemic, managing staff has abruptly changed. New methods of supervising employees became necessary:
Software installed on company-provided laptops to track time
Monitoring mouse movement
Monitoring screen activity
Tracking location by GPS on electronic devices, laptops, phones, or vehicles
Monitoring social media accounts
Monitoring internet surfing activity
Monitoring messaging apps
Monitoring collaborative programs and apps like Microsoft Teams, Google Workspace, Microsoft Office, Slack, etc. to track an employee's time working
Federal Electronic Monitoring Laws for California Telecommuters:
While the cause of the swift change in management practices is easy to identify, that doesn't make the difficulties that come along with it any easier to address. When does employee monitoring for productivity purposes step over the line into invading the employee's privacy? The first line of defense to protect California worker privacy is at the federal level. The Electronic Communications Privacy Act (ECPA) governs the monitoring of electronic communications in the workplace. Generally, the ECPA prohibits intentional interception and monitoring of employees' communications (oral, wire, and electronic).
Does California's Labor Code Include Any Additional Protections?
While an employer's use of technology is generally legal, the recent influx of monitoring at-home workers prompted California to seek additional means of protecting their workers. In 2022,
California proposed a bill to restrict employers' use of technology to specific times of day, certain activities, and particular locations. The "Workplace Technology Accountability Act" (AB 1651): Assemblymember Ash Kalra introduced AB 1651 in 2022 to help protect workers against using technologies in the workplace that can negatively affect the employee's privacy and overall well-being. The bill would attempt to establish reasonable limitations on employers seeking to use unregulated data-driven technology and give workers and the state the tools to address any adverse impacts the use of such tech may cause.
What is AB 1651 Workplace Technology Accountability Act?
A first-of-its-kind measure, the Workplace Technology Accountability Act passed the Assembly's Committee on Labor and Employment. The bill is currently pending with the Committee on Privacy and Consumer Protection. If the bill passes, AB 1651 would require California employers to turn to the "least invasive" means of monitoring their employees electronically and limit it to times when it was strictly necessary to accomplish one of the "allowable" purposes specified in the bill:
Allow an employee to complete an essential job function
Assess worker performance
Monitor production quality or production processes
Ensure compliance with the law
Protect worker safety, health, and security
Distribute wages or benefits
Additional allowable purposes may also be added, but only as determined by the labor agency.
Would AB 1651 Prohibit Employers from Using Technology?
If enacted, AB 1651 would also expressly prohibit employers from:
Monitoring their workers when they are off duty
Tracking and monitoring an employee's personal device
Monitoring employees in private areas (including vehicles or residences)
Using monitoring programs or systems that use facial recognition, gait, or emotion recognition technology.
Even when using technology in compliance with the law, AB 1651 would require employers to inform employees when they collect data regarding:
What data is collected
When the information is collected
When employee monitoring occurs
What algorithms the data collection uses
How the employer uses the data
If you need to discuss employment law violations, contact Moss Bollinger, Sherman Oaks, California employment law attorney. He's dedicated to protecting and asserting the rights of his clients. Call 866-942-7974 today for a free consultation, or contact us online.