Employee Surveillance in the Workplace: What You Should Know

Authored by Theodore T. Storer

Knowing what your employees are up to is a normal concern for any small-business owner. With today’s advanced technology, it is easier than ever to monitor employees’ activities and to make sure they are doing what you pay them to do. For example, keystroke-monitoring software allows a business owner to know when employees are dutifully typing away or playing their fourth game of solitaire. However, privacy laws can trump whatever new technology is out there. A concerned business owner should be aware of what is legal, before snooping on workers. Here are some issues relating to employee surveillance.

CAN I MONITOR MY EMPLOYEES?

Federal and state laws generally allow a business owner to use electronic monitoring, including video surveillance, reading employees’ business-owned email, and use of keystroke technology.

While this monitoring is allowed, it is important to note that in many cases, including reading emails and monitoring keystrokes, Indiana courts have said that the employer must give employees prior notice that the technology is in effect.

Additionally, while video surveillance may be allowed, after issuing a policy, recording of audio is likely not legal. The Indiana Wiretap Act prohibits businesses from intercepting or recording a telephone or electronic communication without at least one party’s consent.

In addition, penalties for unauthorized capture can be severe: employers who illegally intercept electronic communications can face felony charges with possible prison, fines up to $10,000, and additional civil damages.

ARE THERE RESTRICTIONS ON SURVEILLANCE?

To error on the side of caution, it is wise to put video cameras only in common areas, such as office space, lounges, and factory floors.

In addition to the restriction against audio recording, it is also unlawful to video in areas where employees have a reasonable expectation of privacy (such as bathrooms, changing rooms or lactation rooms).

Moreover, there may be particular events when videotaping is prohibited. For example, Boeing  was barred from photographing or videotaping employees when they were participating in collective bargaining-related activities, such as picketing the work site.

Moreover, there may be other concerns if the surveillance relates to a potential legal action – which is a form of investigation, rather than monitoring done on a regular basis.

WHAT SHOULD I DO IF I WANT TO MONITOR MY EMPLOYEES?

The first thing you will want to do is speak with a lawyer to understand what the law permits and where you should exercise caution. Then, you probably want to create training and a written employment policy that tells the employees, and those who will be doing the monitoring, exactly what can and cannot be done.