As remote work environments become increasingly commonplace, it has become more challenging for employers to strike a balance between effective business oversight and respect for personal privacy. The California Chamber of Commerce reported that, before the pandemic, only 5 percent of workdays were carried out from home. By 2024, that number rose to 27 percent, indicating that this way of working is here to stay.
In the era of virtual monitoring, where many employers use monitoring software to oversee virtual teams, knowing your rights as a remote employee has never been more important. If your legal rights have been violated, you may be eligible to pursue compensation.
This article explores the applicable laws, limitations, and best practices around virtual employee monitoring. It also discusses how you can seek justice if you believe your employer has taken virtual monitoring too far.
What Is Virtual Monitoring?
Virtual monitoring refers to any digital method used by an employer to monitor employee activity in remote or hybrid work settings.
Some common forms include:
- Time tracking and productivity monitoring tools: Time tracking software can allow employers to monitor work time, breaks, and overtime. The goals of this type of system include distributing work fairly, monitoring productivity, and identifying employees who are struggling with overwork or failing to keep up with their workload due to periods of low productivity.
- Task management software: Project management software enables employers to monitor team members’ individual contributions in real-time by centralizing information sharing on a single platform.
- Computer monitoring: Keystroke logging, internet access reports, and screenshot monitoring are used to ensure workers are using devices appropriately during working hours.
- GPS tracking: If your employees’ work involves driving, GPS fleet management systems can track their locations at any given time and also help businesses plan routes for greater fuel efficiency.
- Social media monitoring: Employers can monitor the public pages of employees’ social media accounts. If these are accessed on company computers, employers may use software to do this or even use third-party companies to monitor employees’ social media posts.
Many businesses are naturally concerned about worker productivity. While they want to implement flexible working arrangements, they still need to protect their bottom line. However, these concerns do not give businesses the right to carry out any monitoring they see fit. All forms of virtual monitoring must comply with federal and state laws.
Federal and State Laws on Virtual Monitoring
There is no single federal law that comprehensively regulates virtual monitoring of employee activities. Additionally, there is no single federal data privacy law. However, there are federal and state statutes that have a bearing on specific aspects of workplace monitoring.
Federal Law: Electronic Communications Privacy Act (ECPA)
The ECPA was enacted to address the unauthorized interception, access, and disclosure of communications, thereby protecting individuals’ privacy rights in the digital age In general, the ECPA restricts intercepting and monitoring oral, wire, and electronic communications. However, this does not mean that all computer monitoring of employee communications is illegal. There are exceptions when there is a legitimate business purpose, when the employer notifies the employee that there is no expectation of privacy on company owned devices or when the employee provides consent to have his or her communications monitored.
These rights extend to electronic communication systems that employees use both within and outside of the office. This could include phones, tablets, laptops, other devices, and internet services provided by the company. However, businesses need to make it clear to their employees that they should have no expectation of privacy when using these devices or services. An employer may inform employees that they have no expectation of privacy though personnel or human resources materials that are provided or available to employees.
In essence, federal laws permit employers to gather data during work hours using company equipment. However, the monitoring must either be done after notice to the employee that there is no expectation of privacy, with the employee’s consent or serve a legitimate business reason.
Federal law: Stored Communications Act (SCA)
The SCA is a data protection law that governs private communications and records stored on servers and other forms of electronic storage. It allows employers to access emails and other communications stored on its servers in line with the company’s policies, which have been disclosed to employees. The SCA allows an employee to seek damages when someone intentionally accesses an electronic communication service without authorization and thereby obtains a wire or electronic communication from electronic storage.
However, it does not allow an employer to access private messages or other personal data stored by a third-party service provider.
State law: California privacy laws
California has some of the strictest and most comprehensive data privacy laws in the United States. The California Consumer Privacy Act (CCPA), which has been further strengthened by the California Privacy Rights Act (CPRA), originally did not apply to employees. However, this exception ceased on December 31, 2022, and workers are now protected by its rigorous regulations.
Crucially, the CCPA gives California workers the right to know they are being monitored and why. Some other key rights include:
- Right to access data
- Right to correct or delete data
- Right to opt out of employees selling or sharing their data
- Right to limit the company’s use of sensitive data
- Protection from retaliation for exercising rights under the CCPA
- The right to a privacy notice that outlines these rights and the categories of personal information collected, as well as the purposes for which the information is used
Employee data covered by the CCPA includes:
- Employment-related information
- Biometric data
- Geolocation data (impacting GPS tracking)
- Social media data
- Inferences about an employee’s abilities and characteristics
While the CCPA does not make employee monitoring illegal, it does strengthen employees’ rights, and employers must be very careful to fully disclose all monitoring practices they employ. However, the CCPA does not apply to all employers. A California employment law attorney can explain your rights under this law and the steps to take if they have been violated.
State law: New York privacy laws
Under New York Civil Rights Law § 52-c. employers in New York are required to provide prior written notice to employees if they monitor or intercept employees’ telephone conversations, electronic mail, or internet access/usage. This notice must be given at the time of hire and acknowledged by the employee either in writing or electronically. Additionally, the notice must be posted in a conspicuous location accessible to employees. The notice must inform employees that their communications may be subject to monitoring at any time and by lawful means.
Employees using employer-provided devices may have limited expectations of privacy, especially if the employer has policies explicitly stating that such devices are subject to monitoring. However, once they have given notice, New York businesses have the right to monitor:
- Telephone communication
- Emails
- Internet usage
However, while this bill does protect workers from unauthorized surveillance, it does not give them the right of private action if they are monitored without being notified. This means you cannot sue your employer for compensation. The statute explicitly provides that enforcement of its provisions is the responsibility of the attorney general, who may impose civil penalties on employers for violations, However, if the monitoring methods used went beyond what is lawfully permitted, you may have more options such as a claim for invasion of privacy.
Whichever state you work in, you may have a statutory or privacy based right to take legal action if workplace monitoring has gone too far. Consult an experienced employment law attorney to understand your data protection rights and learn how to take legal action if these rights have been violated.
State laws on social media monitoring
There is no federal law that prevents employers from requesting employees’ social media user names and passwords. However, several states have now enacted laws to ensure a worker’s reasonable expectation of privacy when using social media is upheld.
For example, in Arkansas, employers may not:
- Require or coerce employees to share social media usernames and passwords
- Require or coerce employees to change the privacy settings of their social media accounts
- Use inadvertently acquired login information to access employees’ accounts
- Force the employee to “friend” another employee
No two cases are identical, and it is crucial to seek qualified legal advice tailored to your specific state and circumstances. An experienced employment attorney can help you navigate the complex web of data protection regulations that apply to remote employees and understand how you can pursue justice.
Do Not Let Invasive Monitoring Violate Your Rights
Employers have the right to monitor employee activity and ensure remote workers are putting in a solid day’s work. However, they do not have the right to trample on your data privacy rights and practice invasive monitoring that goes beyond what is needed for a legitimate business reason. If you believe your employer has violated employee monitoring laws, it’s time to talk to an experienced employment lawyer at Allred, Maroko & Goldberg.
The tenacious lawyers at AMG Law have been fighting for employees’ rights for almost 50 years. We may be one of the biggest and most respected law firms in California, but we have never lost our focus on each individual client. We are dedicated to securing fair compensation and setting precedents that protect others in the future.
Now is the time to schedule a confidential case review and receive tailored advice from a trusted employment attorney. Call AMG Law today at 213-459-3610 or complete our online contact form, and we will call you back soon to arrange a consultation.