By: Joshua Waugh
Since “pandemic life” began, as many as 40% of American workers have worked from home. If you’ve been lucky enough to trade the crowded bus or the gridlocked highway for the shorter bedroom-to-laptop commute, chances are you’ve wondered just how closely your employer is watching you. The truth is that telework, for all its benefits, also has a major downside: near limitless opportunity for high-tech surveillance. And while it is clear that employers have the legal capability and the technology to monitor their employees, it’s less clear that employee surveillance is actually a good idea at all.
Can my employer really monitor me?
It is no secret that American privacy and technology laws are often lacking. At the federal level, the primary law dealing with electronic privacy is the Electronic Communications Privacy Act (ECPA), which was passed in 1986. The law is so old that Title I of the Act only contemplates a third party’s “interception” of a message sent by “wire, oral, or electronic communication”; the law doesn’t address the possibility of accessing stored communications, such as email, post-transmission.
Furthermore, Title I of the ECPA has been interpreted to include a carveout specifically allowing employers to monitor employees as long as the employer can show a legitimate business purpose. The ECPA also permits employers to electronically surveil employees upon their consent, which, given often imbalanced employee-employer power dynamics, is not great for the ordinary employee.
Title II of the ECPA, or the Stored Communications Act (SCA), provides more protection to employees, though the law is still just as dated as Title I. Under the SCA it is fairly well established that your employer can’t log in to your personal email without your permission. So rest assured, your employer cannot see the thousands of unread advertising emails in your inbox unless you give them access.
All of that said, there is not much legislation on electronic privacy at the federal level. That may seem surprising considering we’ve seen privacy controversy after privacy controversy from practically every big tech company in recent years, but electronic privacy regulation seems to be generally left to the states. The end result is that only Californians (and to a lesser extent Coloradans and Virginians) enjoy broad statutory protections against electronic employer surveillance. In most of the other states, as long as you are using an employer’s device or network, your employer may surveil you as much as they’d like. And surveillance software is readily available, including keyloggers that record every keystroke you make, activity monitors, and even software that records every website or app you access on the device. In fact, if your workplace is using the Microsoft Office 365 Suite, your employer is already able to monitor and analyze your work activity.
Where do we go from here?
If you’re concerned about your general lack of privacy rights living in America, you are not alone. Researchers have published studies showing that extensive employer surveillance can breed distrust among employees and such surveillance can be a significant hindrance on worker productivity and other positive performance outcomes. The feelings of distrust are even stronger when employees discover that they were being surveilled without their knowledge.
Despite evidence suggesting employee surveillance may have negative effects, surveys show that 62% of executives planned to use monitoring software in 2019, and that number is certain to have grown during the pandemic work-from-home era. Meanwhile, we’re also in the midst of a radical transformation in the labor force—the U.S. Bureau of Labor Statistics reported that 2.9% of the entire U.S. workforce, 4.3 million people, quit their jobs in August 2021. By all appearances, the Great Resignation is accelerating as 4.4 million workers went on to quit during September 2021, topping August’s record numbers. At a time when people are rethinking their relationship with work, struggling with burnout, and dealing with burdensome household issues such as child- and elder-care, employers should spend less time secretly surveilling their employees, and instead put effort into employee engagement. Essentially the opposite of paranoid surveillance, companies should engage with their workers by providing flexibility and building trust. Employee engagement is more likely to boost productivity than surveilling, and more importantly, in today’s climate, has been shown to increase employee retention. Ultimately, under current U.S. law, your employer can surveil you to its heart’s content in most states—but you can also resign if you feel your privacy rights have not been respected. As more and more in the labor force decide to do so, we’ll just have to wait and see how legislators respond.