Know the Risks When Monitoring Remote Workers

​Employers are keeping an eye on their workers at home through use of remote monitoring technologies. These tools perform tasks like tracking keystrokes, measuring employees' active and idle time in key applications and websites, enforcing data security policies, and even taking photos to see whether workers are sitting at their laptops at home.

But these tools aren't without legal risks. Because many workers use personal devices rather than company-owned computers at home—and use those devices to periodically connect to nonwork websites during the day—organizations need to be aware of the legal implications of using monitoring technologies with remote workers.

Experts also say being transparent about the use of such monitoring tools not only is essential to avoiding legal pitfalls, it's also key to building trust in the workforce around privacy issues.

During the past six weeks, almost 20 percent of organizations purchased some form of software or technology designed to track and monitor remote employees, according to data from Gartner, a research and advisory firm in Arlington, Va. That research suggests these tools will continue to be used even as the COVID-19 pandemic recedes.

Gartner projects 48 percent of employees will still spend at least some time working remotely after the pandemic, up from 30 percent who worked remotely at least part time before the coronavirus crisis. The Gartner research is based on a survey of 420 HR leaders in early April, a survey of 317 finance leaders in late March and a study of 4,500 global managers and employees earlier in the year.

Josh Bersin, HR industry analyst and founder of the Josh Bersin Academy in Oakland, Calif., said organizations should be clear about their intentions when using employee monitoring tools.

"Is the purpose to benefit employees, to evaluate them or perhaps to penalize them?" he said. "If the idea is to benefit employees, it's good; if it's to evaluate employees, it's potentially dangerous; and if it's to penalize them, it's probably a bad idea."

Monitoring Technology Tools Grow

Companies such as Teramind, ActivTrak, InterGuard, Sneek and Hubstaff offer technologies that enable organizations to monitor their employees at home. "It's everything from technology that will take photos of employees from their laptops to tools that allow workers to punch a virtual time clock to tracking keystrokes to monitor productivity levels," said Brian Kropp, chief of research in the HR practice at Gartner. "These are tools that many companies weren't buying before."

Teramind's technology can track employee time spent on apps, websites or e-mail; gauge team productivity levels; and help enforce data security policies. Eli Sutton, vice president of global operations for the Miami-based company, said Teramind has seen three times the normal amount of sales leads arriving to its website since the start of the COVID-19 crisis.

One way organizations use the technology is to track the time remote employees spend in productive versus unproductive or "nonwork-related" applications or websites, Sutton said. The tools have the ability to gauge active versus idle time spent in targeted areas.

Teramind gives workers an option to periodically log out of the monitoring software to briefly complete personal tasks, such as checking personal e-mail. "It allows them to regain their full privacy, which is well-suited for today's work-at-home environment," Sutton said. The technology also can be automatically disabled if employees access sensitive websites, Sutton said, such as a health care portal or a personal bank account.

ActivTrak is another company offering technology that can give HR and line leaders greater visibility into how employees spend their time at home.

"A growing interest of our clients is looking for ways to improve the productivity and work habits of remote employees and teams," said Javier Aldrete, vice president of products for Austin, Texas-based ActivTrak. "The technology also can indicate signs of potential disengagement or burnout, since it provides reports on when and how long employees are working on specific tasks each day."

ActivTrak also helps ensure remote employees are using good data security practices. For example, if workers are saving files to storage areas not authorized by the company or using apps not approved by the organization, automatic alerts can be sent to managers to follow up on such practices.

Legal Implications of Monitoring

Employers using monitoring technology for remote workers face the same legal guidelines as when using such technology in the workplace, legal experts say. But there are special legal considerations when employees use personal devices for work purposes at home.

"In most instances state laws require you to protect employees' privacy rights by giving them advance notice of your monitoring," said Jennifer Betts, an employment attorney for Ogletree Deakins in Pittsburgh, Pa. "The best practice is to get employees' consent for monitoring in writing."

Such transparency is not only good legal practice but also good management practice, experts say. "We've consistently found that when employees are surprised by the use of monitoring technologies, they get very frustrated" and it impacts their morale, Kropp said. "The word will always get out that these tools are being used, so the question is whether you want employees to learn about it from management or from another source."

Usama Kahf, a partner with Fisher Phillips in Irvine, Calif., said organizations need to consider that remote employees may be using personal devices for work tasks when they install monitoring technology. "Employees generally have an expectation of privacy in their use of personal computers and phones unless a different company policy has been communicated to them in writing," he said. If you're using any form of monitoring technology that affects employees' personal devices and retaining information from that monitoring—beyond information gathered when an employee's device is interacting with a corporate network—there should be a written privacy policy disclosing what the company is doing and why it's doing it, Kahf said.

"That policy should detail those situations and uses where employees won't have a reasonable expectation of privacy," he added.

When an employee's personal device is connected to a corporate network or virtual private network (VPN), Kahf said companies do have a legal right to require employees to agree to data security monitoring measures in those situations.

Betts said legal issues also are arising around the use of videoconferencing to conduct business, specifically related to recording the images and voices of employees without their permission. Organizations might use such video recordings for creating transcripts or documentation of calls or for future training purposes.

"Some states have wiretapping laws that restrict employers from recording their employees' voices or images without their consent," Betts said.

Forward-Thinking Uses of Productivity Monitoring

Some organizations are using the data they gather from monitoring not only to keep tabs on remote employees but also to help plan for an eventual return to the workplace.

Kropp said one financial services company uses data in such fashion. The company measures the performance of its front-line employees in two key ways: the number of insurance claims they process in an hour and the error rate associated with those claims. As the company analyzed the performance of remote workers during COVID-19, it discovered something of interest: Various employees were operating at peak productivity and efficiency levels at very different times of the day.

"They found that some people had a faster claims processing speed and lower error rate earlier in the morning and others performed better on those metrics in the afternoon," Kropp said. "Some also were doing their best work later at night."

He said such findings may prove useful as the company begins to transition employees back to the workplace. "Many organizations will have to do social distancing in the workplace, and they may 'time shift' when employees work," he said. "To the extent they can schedule worker shifts when people have proven to be their most productive at home may be beneficial."

Dave Zielinski is a freelance business writer and editor in Minneapolis.