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  • By: Moss Bollinger
  • Published: September 14, 2022
Asian woman focused on her work, typing on a laptop in a office - Moss Bollinger LLP

Following the coronavirus pandemic and the various shutdowns across the country, many employees went from full-time in-office to working full-time from home. The change occurred so quickly for many Californian workers they weren’t left much time for questions or research regarding their new situation. Many now have privacy concerns and questions about the legality of monitoring employees completing their work as telecommuters.

Some California Employers Monitor their Telecommuting Employees’ Computers

One of the main concerns employers have with a telecommuting workforce is whether or not their employees are doing their job – completing their assigned tasks. Some employers now depend on surveillance programs and applications that provide a report based on monitoring a worker’s productivity.

Should Employees be Concerned if an Employer is Monitoring their Home Computer?

The rapid increase in telecommuting employees seems a natural precursor to increased productivity monitoring app use. Still, many are becoming more and more concerned about the legality of this practice. In some situations, monitoring employees is legal, but it must be done right.

Typical Methods Used to Monitor Employees Working Remotely:

  1. Recording internet history/activity
  2. Taking screenshots
  3. Keeping track of keystrokes
  4. Accessing a device’s webcam
  5. Noting which files an employee accesses and when
  6. Tracking an employee’s physical location (by GPS)
  7. Using productivity apps or software to track a computer’s idle time, how long certain remain open, etc.

Are the Invasive Monitoring Practices Many Employers Use Legal?

If an employee uses their employer’s computer or other equipment while on their network, an employer generally has the right to monitor what they do. If the employee is using their own device and their own internet connection, it could still be legal for the employer to monitor, but it’s less likely. The employer’s monitoring practices are also less likely to be seen as problematic by the law if the employee gave permission or the employer gave the employee notice of the monitoring. For example, some companies have a BYOD policy (Bring Your Own Device policy) that allows the employer access to what is happening on an employee’s personal device.

The Law Does Provide a Standard to Protect Employee Privacy:

The Electronic Communications Privacy Act of 1986 (ECPA) may provide some protection to employees who feel their employers have overstepped when monitoring for productivity. The Act appears to offer a broad umbrella of security at first, but there are also some notable exceptions when applying the law to employment situations.

Exceptions to the Electronic Communications Privacy Act of 1986:

Title I (the Wiretap Act) prevents the collection of wire, oral, or electronic communication. However, a business use exception allows employers to monitor employees’ communication if they have a legitimate reason. The consent exception also enables employers to monitor an employee’s communication if that employee gives their consent.

Title II (Stored Communications Act) protects information stored electronically. Still, the SCA does not protect the privacy of stored information if that info is stored on the employer’s servers or equipment.

Title III applies to pen registers and trap/trace devices. These devices don’t record the communication’s substance, but they track other identifying information, like the number dialed or where the call originated.

Additionally, many employment monitoring techniques currently in use aren’t mentioned in the ECPA (for example, keystroke logging).

California State Law & Employee Monitoring

California law provides additional protections for employee privacy. California’s “all-consent” or “two-party consent” laws require all parties involved in the communication (electronic or by phone) to agree or consent to the monitoring.

If your employer is taking employee monitoring too far, and you need help protecting your privacy, contact Moss Bollinger, Sherman Oaks, California employment law attorney. He’s dedicated to protecting and asserting the rights of his clients. Call (310) 982-2291 today for a free consultation or contact us online.

Moss Bollinger LLP - Sherman Oaks, CA

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