Monitoring Remote Workers: Balancing Productivity and Privacy

​More employees are working from home, and more employers are keeping an eye on them through use of remote monitoring technologies. These tools perform multiple tasks, such as tracking keystrokes and measuring employees' active and idle time in key applications and websites. Monitoring tools also help companies enforce data security policies, and even take photos to see whether workers are sitting at their laptops at home.

But tracking tools aren't without risks. Workplace monitoring is subject to a variety of federal and state laws regarding when employees have a right to privacy and if and when they must be notified that they're being monitored. From a legal perspective, disclosing surveillance is the smartest tactic. Letting employees know that they will be monitored removes their reasonable expectation of privacy—the element that often forms the basis for invasion-of-privacy lawsuits arising under common law.

And while being transparent about the use of such monitoring tools is essential to avoiding legal pitfalls, it's also key to building trust in the workforce around privacy issues.

According to a June study by Gartner, 26 percent of HR leaders report having used some form of software or technology to track remote workers since the start of the coronavirus pandemic. That's up from 16 percent in April, when the pandemic was taking hold. The tracking includes monitoring of work computer usage, employee e-mails or internal communications, work phone usage, and employee location or movement.

Many executives are eyeing the use of such technology because they understand that remote work is here to stay. Gartner projected that 47 percent of employers plan to let workers work remotely full time moving forward. In addition, 82 percent of business leaders across multiple industries plan to allow employees to work remotely at least some of the time as they reopen closed workplaces.

It's important for organizations to be clear about their intentions when using employee monitoring tools, says Josh Bersin, HR industry analyst and founder of the Josh Bersin Academy in Oakland, Calif., a professional development organization for HR.

"Is the purpose to benefit employees, to evaluate them or perhaps to penalize them?" Bersin says. "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."

Exploring the Spectrum of Remote Work Monitoring Technologies

Companies such as Teramind, ActivTrak, InterGuard, Sneek and Hubstaff offer technologies that enable organizations to monitor their employees at home. "These are tools that many companies weren't buying before," says Brian Kropp, chief of research in the HR practice at Gartner.

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

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 says. The tools have the ability to gauge active versus idle time spent in targeted areas.

Teramind's tool gives workers an option to periodically log out of the monitoring software to briefly complete nonwork 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 says. The technology also can be automatically disabled if employees access sensitive websites, Sutton says, 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," says 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 who can follow up on such practices.

Understanding the Legal Landscape of Remote Worker Surveillance

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 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," says Jennifer Betts, an employment attorney for Ogletree Deakins in Pittsburgh. "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. "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 says. "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."

When organizations install monitoring technology, they need to consider that remote employees may be using personal devices for work tasks, says Usama Kahf, a partner with law firm Fisher Phillips in Irvine, Calif. "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 says. 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 says.

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

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

Legal issues also are arising around the use of videoconferencing to conduct business, Betts says, specifically related to the recording of the images and voices of employees without their permission. Organizations, for example, might use such video recordings to create transcripts or to document 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 says.

Innovative Approaches to Utilizing Remote Work Data

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 says one financial services 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 says. "Some also were doing their best work later at night."

He says 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 says. "To the extent they can schedule worker shifts when people have proven to be their most productive at home may be beneficial."

Whether business leaders are anticipating a return to the office, a fully remote workforce or something in between, monitoring tools can provide valuable insights into how work gets done and how organizations can support their front-line workers.