Bosses are watching employees work from home. Is that legal?

As more employees take advantage of working from home, bosses have faced a new challenge: managing workplace productivity. As a result, companies have implemented new policies to monitor remote employees, raising privacy concerns in the process.

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To what extent employers can monitor workers, and do employers have to let workers know?

Ways to monitor employees

Companies monitor employees working from home using cloud-based tracking software. Companies can track work phones, tablets, or laptops to see browser history, mouse movements, keystrokes, application usage, and facial recognition. Companies can even track employee well-being through emotion detection software.

“Employees want to know what are their rights,” said Doug Lipsky, a New York-based employment law attorney who represents employees and employers. “How much can the employee survey them? And employers want to know, how much can we look to see? Are our employees working from home? Are they being productive or just watching Netflix?”

Is monitoring an employee at home legal?

“There’s a federal statute called the Electronic Communications Privacy Act that gives the employer really great discretion and authority to monitor anything an employee is doing on employer-provided equipment, a computer, or any employer-provided software,” Lipsky said.

However, on the state level, things can get a little complicated. For instance, states like California and New York mandate companies inform employees and obtain consent before monitoring them.

“There’s been plenty of cases in California where the employer did not get written consent and the employee would bring action,” Lipsky said.

At first glance, Lipsky said monitoring employees might seem intrusive, but he believes it can also be helpful for employers.

“To see how long projects are taking,” Lipsky said. “What employees are a high utilization rate? What software programs are actually being used and aren’t being used, so they know where to divert resources.”

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