Recording Employees and Monitoring Their Screens: What Is Legal and What Isn’t?

Employee monitoring is any type of technology used to track and record the activity of employees. It includes recording employees’ computer screens, keystrokes, emails, web browsing, instant messaging, and phone conversations. 

It can also involve checking in-house interactions, movements, and behaviors. Employee monitoring is controversial because there are gray areas regarding what is legal and what isn’t. Read on to learn more about the topic.

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How Is the Monitoring Conducted?

Recording and monitoring employee screens occur by installing third-party software or using in-house programs. These recorders track employee activity and store the information for review by supervisors or managers. 

An employer can edit recordings, delete certain sections, or store the video for future reference. For a more professional look, edit video online, then save it to a hard drive for further analysis.

The data collected analyzes performance, identifies improper behavior, and guides training. It also helps employers find employee misconduct patterns and weed out malicious intent. The management can:

• Take screenshots of different monitors
• Track what employees type
• Monitor workplace emails
• Monitor and record all online activity
• Check who accesses particular files or information
• Monitor physical location through GPS
• Track or measure app idle or use time

Through this exercise, companies can collect data to protect themselves from lawsuits. For instance, in case of a lawsuit from a client, employers want to be able to provide evidence that employees are following the company’s procedures. They also want to prove that disciplinary actions are taken when needed. Other reasons are:

• To protect intellectual and other proprietary data, including client information
• Maintain integrity
• To ensure compliance with organizational policies 

Legalities: What Is Allowed?

Employee monitoring has become increasingly popular as employers seek ways to protect their data. The rise of remote working and freelancing, especially after the Covid-19 pandemic, has further increased the need for monitoring screens. Employers can no longer personally check on every team member and must rely on computer monitoring. It increased the demand for monitoring tools by 65% in 2022.

In most countries, employers have the legal right to monitor their employees’ activity as long as it is reasonable and lawful. The employer should inform employees about the monitoring practices and their rights, and it’s fair and non-discriminatory.

Monitoring Must Comply With the Set Regulations

Take employees’ privacy into consideration and respect the boundaries set by the local laws. However, an employer can check all activities on the company’s devices and networks.

The employer can review emails and calls, track keyboard use, and record video footage without prior notification. Nevertheless, employers must respect any policy or law prohibiting the interception or recording of a particular communication.

Monitoring is prohibited in public spaces such as the cafeteria, breakroom, or restroom. These are spaces employees need privacy to conduct personal activities. 

How Does the Electronic Communications Privacy Act of 1986 Affect Monitoring?

The Electronic Communications Privacy Act of 1986 (ECPA) is an amendment or update of the Federal Wiretap Act of 1968. It covers the interception, disclosure, and use of electronic communications. 

ECPA defines electronic communication as any transfer of signs, signals, writing, images, sounds, data, or intelligence transmitted in whole or in part by a wire communication. 

Generally speaking, ECPA provides that it is illegal for an individual or business to intercept or disclose the contents of any electronic communication without the prior consent of all parties involved.

ECPA is also known as the Stored Communications Act (SCA) and the Pen Register Statute. It protects any stored electronic communications, including emails, text messages, and voicemails. 

Pen Register Statute regulates devices that record information sent over communications networks. It prohibits using a pen register or other device to intercept communication from the telephone line.

The ECPA also prohibits employers from accessing or disclosing to third parties any stored communication without the employee’s consent. It’s easy to assume that ECPA entirely prohibits monitoring, but that’s not so. There’re caveats applying to the business or employer/employee relations. They include:

Monitoring Where There’s a Legitimate Reason

Employers can monitor their employees’ electronic communications if there’s a legitimate business justification for doing so. They must demonstrate the exercise is necessary to protect the interests of the business. 

They can also monitor when they reasonably suspect an employee is engaged in illegal activity. Other instances are when the employer is obligated to investigate employee misconduct, or it’s necessary to perform a business transaction successfully.

There’s Consent

Consent means that employees must be notified of and agree to the monitoring practices. Employers must also provide a reasonable explanation for why the monitoring is necessary and ensure that employees understand the scope and purpose of the monitoring. 

There has to be a written or electronic agreement between the parties outlining the monitoring conditions. Notices must also be posted in common areas to ensure employees know the monitoring practices.

When the Information Is in Company Equipment

The SCA (Stored Communications Act) specifically allows employers to monitor any information stored or transmitted using the company’s equipment. It includes emails, phone calls, text messages, and audio or video recordings. The employer can review the content of these communications but only use them for legitimate business purposes.

When companies allow employees to use personal devices to accomplish work-related tasks, they can monitor them with permission. Some states require two-party consent before any electronic communications monitoring.

Is Monitoring Good or Bad?

Monitoring employee communications is beneficial, as it helps companies ensure the workforce isn’t engaging in illegal activities or using company resources for personal gain. It also maintains a secure working environment as they continuously monitor threats and malicious activities.

However, no one wants to have their every move tracked or monitored. It leads to mistrust, which could harm morale. Employers must understand that staff members are entitled to a certain degree of privacy. 

The key is transparency about monitoring practices and ensuring everyone understands the purpose. It will foster a trusting working environment and increase morale and productivity.

Work as a Team

Both employers and employees need to understand their rights and responsibilities when it comes to electronic communications monitoring. Employers must monitor employee communications per the ECPA and other applicable laws. At the same time, employees should be aware of their rights and understand that they can’t expect total privacy regarding electronic communications in the workplace.