Employee monitoring

Employee monitoring, or employee surveillance, is a way for employers to supervise their employees. Employers conduct monitoring in order to increase employee productivity, to prevent the theft of proprietary information and other intellectual property, and to avoid liability related to copyright infringement or the creation of a hostile work environment. Employee monitoring techniques include e-mail scanning, keystroke logging, GPS tracking, telephone and voicemail tapping, video surveillance, and the remote viewing of employees’ computers in real time. Some employers have used devices that look like ordinary employee ID badges to collect biometric data such as voice patterns and stress levels. Employee monitoring raises important legal and ethical questions about employees’ right to privacy, and case law on the subject continues to evolve.

Overview

In the United States, an individual’s right to privacy is based on a “reasonable expectation of privacy,” which sets limitations on individuals’ rights to privacy in public places. In US workplaces, expectations of privacy are minimal and may be reduced further through notices, employee handbooks, and end-user policies that make explicit that company networks are monitored. In contrast, European courts make it difficult for employers to defend their employee monitoring practices based on such notices, and European workers are more likely to win privacy-based lawsuits than their American counterparts.

In the United States, the right to privacy has been inferred from the Fourth Amendment to the Constitution, which guarantees protection against unreasonable searches and seizures by the government. However, in terms of employee monitoring, this protection applies only to public-sector employees. Employees in the private sector must rely on state laws, which tend to be limited and to favor employers. US Supreme Court cases such as O’Connor v. Ortega (1987) and City of Ontario, California v. Quon (2010) have recognized the privacy rights of government employees but have upheld the right of government employers to monitor employees as long as there is a reasonable, work-related justification for the surveillance and the scope of the surveillance is limited to the original work-related justification.

Employers are motivated to monitor their employees for a number of reasons: to prevent the theft of company data or property, to increase employee productivity and compliance, to remove illegal software or malware that could compromise network security, and to avoid liability related to copyright infringement or harassment by employees. The Supreme Court cases Burlington Industries, Inc. v. Ellerth (1998) and Faragher v. City of Boca Raton (1998) established that employers can be held liable for a hostile work environment created by an employee. In order to defend against such liability, employers must demonstrate that they took reasonable care to prevent and address hostile or harassing behavior by employees. Monitoring internal employee communications offers employers a means to track and document any harassment. Other benefits of employee monitoring include the ability to learn how employees work best; to keep employees safe, and to help train and evaluate employees.

Although there are many benefits to employee monitoring, studies also show that monitoring activities can negatively affect employee morale and motivation. Several surveys have found that employees subjected to invasive monitoring techniques report lower levels of company loyalty and higher levels of stress and anger, which could negatively affect productivity. As a company’s monitoring program becomes more extensive, the associated policies and guidelines must become more specific and detailed, which may deter new candidates from joining the company, thereby driving away talent. Another unintended consequence of employee monitoring is that highly supervised employees tend to take fewer risks, choosing to closely follow company polices, and they are therefore less likely to develop leadership and decision-making skills.

A 2005 survey by the Society for Human Resource Management found that more than one-third of employees surveyed believed that monitoring demonstrated a company’s lack of trust in its employees, whereas only 2 percent of managers cited lack of trust as a reason for adopting monitoring systems; managers were more likely to cite the need to protect company assets and to avoid liability. However, several studies have suggested that employees are more willing to accept employee monitoring tactics when the company’s policy allows for small but realistic amounts of computer time for personal use during the workday. Following the onset of the COVID-19 pandemic in 2020 and the subsequent sharp increase in remote work, many companies implemented or increased employee monitoring programs.

Bibliography

Alder, G., et al. “Employee Reactions to Internet Monitoring: The Moderating Role of Ethical Orientation.” Journal of Business Ethics 80.3 (2008): 481–98. Print.

Bolderdijk, J. W., L. Steg, and T. Postmes. “Fostering Support for Work-Floor Energy Conservation Policies: Accounting for Privacy Concerns.” Journal of Organizational Behavior 34.2 (2013): 195–210. Print.

Campbell, Dennis, Marc J. Epstein, and F. Asis Martinez-Jerez. “The Learning Effects of Monitoring.” Accounting Review 86.6 (2011): 1909–34. Print.

Ciocchetti, Corey A. “The Eavesdropping Employer: A Twenty-First Century Framework for Employee Monitoring.” American Business Law Journal 48.2 (2011): 285–369. Print.

Determann, Lothar, and Robert Sprague. “Intrusive Monitoring: Employee Privacy Expectations Are Reasonable in Europe, Destroyed in the United States.” Berkeley Technology Law Journal 26.2 (2011): 979–1036. Print.

Elder, Jeff. "Companies Are Increasingly Monitoring Remote Workers as Offices Remain Closed. Here's What They're Tracking." Business Insider, 30 Jul. 2020, www.businessinsider.com/surveillance-remote-workers-monitor-covid-companies-teramind-2020-7. Accessed 4 Feb. 2025.

Farlee, Mitchell A. “Disclosure and Secrecy in Employee Monitoring.” Journal of Management Accounting Research 22 (2010): 187–208. Print.

Friedman, Barry, and Lisa Reed. “Workplace Privacy: Employee Relations and Legal Implications of Monitoring Employee E-mail Use.” Employee Responsibilities and Rights Journal 19.2 (2007): 75–83. Print.

Hazelhurst, Jeremy. “Surveillance: How Much Is Too Much?” People Management (2014): 36–39. Business Source Complete. Web. 18 June 2015.

Katz, Lee Michael. “Big Employer Is Watching.” HR Magazine 60.5 (2015): 66–74. Business Source Complete. Web. 18 June 2015.

Kaupins, Gundars, et al. “Human Resource Professional Ethical Perceptions of Organizational Online Monitoring.” International Journal of Business and Public Administration 9.3 (2012): 1–14. Print.

“Workplace Monitoring Laws.” Society for Human Resource Management. SHRM, n.d. Web. 26 Sept. 2013.