Along with the increasing number of remote work arrangements available to employees in the wake of the COVID-19 pandemic has come an exponential rise in employers’ use of employee monitoring technology. Nearly 80% of major U.S. employers use some type of technology to monitor employees’ use of the internet, phones, and/or email. More than half of those employers report using non-traditional monitoring techniques, such as logging keystrokes, taking screenshots, recording mouse movements, or activating webcams or microphones, sometimes without the employee’s knowledge, methods colloquially referenced as “Bossware.” Although monitoring employee efficiency and productivity has been a long-standing practice in employers’ physical workspaces, the development of ever new forms of surveillance technology and the deployment of such technology inside employees’ homes and/or on employees’ personal devices have given rise to new legal and practical considerations, a few of which are discussed below.
It is well-settled that private sector employees have almost no reasonable expectation of privacy with respect to their actions within the employer’s workplace or when using work equipment. Under federal law, specifically the Electronic Communications Privacy Act, (ECPA), employers generally have the right to monitor employees as they perform work. As amended, the ECPA permits employers to monitor employee activity on employer-owned devices or...
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