The wave of telecommuting triggered by the COVID-19 pandemic has prompted many companies to adopt more stringent employee monitoring practices. While certain measures are permissible, employers should be mindful of privacy considerations.
The federal Electronic Communications Privacy Act of 1986 (“ECPA”) generally allows monitoring of oral and electronic communications if there is a legitimate business purpose or with consent of employees. The ECPA can be viewed as establishing minimum standards, and states remain free to enact laws to provide greater protection to workers. Under Michigan law, employee surveillance – including video recording – is generally permissible in areas where there is no reasonable expectation of privacy (e.g., common areas, retail stores, warehouses, etc.).
With the rise of remote work, keystroke logging software and other tracking applications have become increasingly common and are often viewed as more intrusive. The use of such technology can present legal risks, especially when applied outside the scope of job duties. (Consider, for example, an employee who uses a company-issued cell phone for both work and personal purposes.)
Government agencies are taking note of these developments. In fact, in a recent memo, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo announced her plan to “urge the Board to apply the [National Labor Relations] Act to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices that would have a tendency to interfere with Section 7 rights.” (Section 7 of the Act affords most private sector employees the right to participate in certain protected concerted activities to improve wages and working conditions.)
What are concerned employers to do? For starters, companies engaging in employee surveillance should ensure that applicable practices and policies are referenced in employee handbooks. And an attorney should be consulted before adopting any new monitoring technology.
If you have questions, contact us at 248.477.6300.