Watching the Workers



Introduction

​Employers are monitoring their workers more often and using more tracking tools than ever. What's surprising is that a growing number of employees don't mind.

Advancements in technologies―including sensors, mobile devices, wireless communications, data analytics and biometrics―are rapidly expanding monitoring capabilities and reducing the cost of surveillance, and that's prompting more employers to use these tools.

In 2015, about 30 percent of large employers were monitoring employees in nontraditional ways, such as analyzing e-mail text, logging computer usage or tracking employee movements, says Brian Kropp, group vice president of HR practice for Gartner, a research and advisory firm. By 2018, that number had jumped to 46 percent, and Gartner projects it will reach well over 50 percent this year.

Employee Trust: It’s a Toss-Up

Do you trust your employer to protect your data?

Source: HR Metrics & Analytics Summit.

​Workers aren't completely at ease with monitoring, but fewer object to it today than in the past.

"Employees are increasingly comfortable with monitoring, especially if the employer is transparent about it," Kropp says.

In the Gartner survey, only 10 percent of employees in 2015 were comfortable with their employer monitoring their e-mail and computer usage. By 2018, that had risen to 30 percent. If the employer explains the reasons for the monitoring, more than half of workers say they're comfortable with it.

'Employees are increasingly comfortable with monitoring, especially if the employer is transparent about it.' 
Brian Kropp

In another survey, workers said they generally did not mind data collection if it was relevant for concrete business goals. But they did tend to object to monitoring certain personal areas. These included private social media accounts (72 percent objected), physical movement (57 percent), personal interactions (56 percent) and biometrics (49 percent), according to a poll from the HR Metrics & Analytics Summit.

Despite those reservations, some privacy advocates think the percentage of employees who accept monitoring will continue to increase. "It's a battle that unfortunately we've mostly lost," says Paula Brantner, senior advisor of Workplace Fairness, a nonprofit that promotes employee rights, and president of consulting firm PB Work Solutions. "Employees are acclimated to it. [As consumers] they've already forfeited their privacy in a lot of different ways." Between wearable devices such as fitness trackers, social media posts and smartphone applications, she says, "people are already giving up data left and right."

Meanwhile, most employers are collecting employee data faster than they can make sense of it. "The rate of technology growth to capture this information has dramatically outpaced our ability to understand what it means," Kropp says. "Most companies are just starting to get insights from the things they're monitoring, but for the most part they're not yet at the point of driving action against that."

Privacy Laws Not Keeping Up

​Technology is also outpacing the law, creating legal gray areas. The federal Electronic Communications Privacy Act of 1986 prohibits the monitoring of oral and electronic communications but provides an exception for employee e-mail and Web activity. In general, an organization can keep track of anything if it owns the equipment (including mobile phones) being monitored.

However, there are two situations in which employee privacy is protected by law, according to Lewis Maltby, president of the human-rights advocacy group National Workrights Institute:

Employers may not record personal oral conversations. Organizations are prohibited from recording employee phone calls or in-person conversations about nonwork-related topics, even if they happen at work. But that's not a guarantee of privacy.

What Workers Say Is Not OK to Monitor

Source: HR Metrics & Analytics Summit.

​"In theory, employers that monitor employee telephone calls are required to hang up when they realize the call is personal," according to a paper prepared for the American Bar Association for employment attorney V. John Ella. "In practice, this means very little, because the employee whose call is being monitored has no way to know that the employer is listening, much less if the employer hangs up."

Employers may not install cameras in bathrooms or changing rooms. Cameras are allowed in work areas, but companies cannot put cameras in areas where people get undressed, such as bathrooms or locker rooms.

There's no sign that federal law regarding employee monitoring will change. However, a recent U.S. Supreme Court ruling could have a chilling effect on monitoring employer-provided cellphones, says Philip L. Gordon, a shareholder at Littler and co-chair of the law firm's privacy and background checks practice group. In the 2018 case of Carpenter v. United States, the court ruled that the government cannot get unrestricted access to mobile phone carriers' records on phone locations, which are tracked via cell towers. Warrantless collection of large volumes of such data violates the Fourth Amendment because it can reveal detailed information about an individual, the court said.

The ruling could be the basis for a new privacy claim that could be problematic for companies, says Gordon, who represents employers. "The court has essentially said that an individual's privacy can be violated even when the information is not owned by the individual." That could create a legal risk for employers that track the mobile phones of employees who don't want them to.

At the state level, laws vary significantly, mostly over whether employee consent is required. A few states have passed laws to govern new types of monitoring. California, Missouri and North Dakota prohibit the use of microchips, for example. Illinois and Washington have laws protecting biometric data.

The Illinois law, called the Biometric Information Privacy Act (BIPA), has prompted a wave more than 100 class-action lawsuits, according to Gordon. The statute requires companies to provide notice and obtain consent before collecting biometric data. Although the law has been on the books since 2008, it didn't receive much attention until the Chicago Tribune ran a story about a BIPA lawsuit against an employer, Gordon says. "That opened up the floodgates" of new suits, he says.

One case, Rosenbach v. Six Flags Entertainment Corp., made it to the Illinois Supreme Court. The plaintiff alleged that Six Flags failed to provide notice and obtain consent when it required her son to have his thumb scanned to gain access to the theme park. At issue is whether an individual is entitled to monetary damages when the only "injury" alleged is a violation of BIPA's notice and consent requirements. The court ruled earlier this year that an individual does not need to suffer an actual injury or adverse effect to seek damages. This ruling could mean that employers will see even more BIPA lawsuits, Gordon says.

What Workers Say Is OK to Monitor

Source: HR Metrics & Analytics Summit.

For Their Own Good?

​Companies are collecting and analyzing data for many reasons, according to the HR Metrics & Analytics Summit survey. These include improving employee performance, retention, engagement, recruitment and culture.

Some forms of monitoring are beneficial to workers as well as the organizations that employ them. Belts that monitor the stress on warehouse workers' backs, for example, can help them avoid injury. And by analyzing staffers' online calendars, employers might be able to tell when employees are becoming overwhelmed and thus are in danger of burning out or quitting. Supervisors can then encourage those workers to take time off.

Sociometric badges, which track and record employee movements, face-to-face interactions, speech patterns, vocal intonations and postures, can provide insights on leadership skills for workers and employers, Kropp notes. For example, research shows that "it matters less what leaders say and more how they say it," he explains. "So, two leaders can say the exact same things, but the one that has a better tone of voice, who says it with more confidence, is perceived as being more effective."

​In the age of "big data," however, some employees worry that they won't know what data is being collected, how it's being analyzed and used, and whether it's being protected. In the HR Metrics & Analytics Summit survey, a large majority of employees reported concern over these issues. And almost half said they did not trust their employers to protect their information. Among their worries:

• Insecure software.
• Incompetent IT departments.
• Previously misplaced data.
• A lack of transparency about how data is being protected.

Particularly problematic are monitoring programs related to wellness and productivity, says Ifeoma Ajunwa, a Cornell University professor who studies the intersection of law and technology in the workplace. Wellness programs and productivity apps are often promoted by employers as beneficial to workers: Who doesn't want to be healthier and more productive? But they can be overly invasive, Ajunwa says, which is why she believes federal law needs to be updated to better protect employee privacy rights.

'Companies could sell [employee data] to advertisers or to drug development companies without the employee’s knowledge and permission. There’s no law that says they can’t.' 
Ifeoma Ajunwa

Even though employee participation in wellness programs may be optional, people usually don't look closely at the terms to which they're agreeing, Ajunwa says. Just as consumers didn't realize how much data social media companies collected, "most workers are simply not aware of how much they're being tracked and monitored," she says. "And this surveillance is currently allowed by law."

She has also found that some third-party wellness program providers are selling employee health data.

"Most employees don't question what's happening with their data," she says. "These companies could sell it to advertisers or to drug development companies without the employee's knowledge and permission. There's no law that says they can't."

What Companies Are Monitoring

Percentage of organizations collecting each type of data.

Source: Gartner.

Whose Data Is It?

​Then there's the question of who owns employee data. In a workers' compensation claim, for example, does a worker get access to the information collected by a back-monitoring belt?

Further, who's liable for decisions made based on an analysis of data collected? For example, when an algorithm crunches data to make a hiring decision, Kropp asks, who gets sued if some type of discrimination is alleged? "Is the employer who relied on the vendor and its algorithms the culpable party? Or is it the vendor that came up with the algorithm that leads the company to make the actual decision? Legally right now, it is unclear."

Beyond the legal quandaries are thorny ethical ones. To what extent should companies act on the analysis of employee data?

​Kropp knows of a bank that looks at the financial records of workers who have personal accounts with the bank, then targets certain employees with advice on how to improve their finances. Part of the reasoning is that employees in difficult financial situations may be more likely to commit fraud.

Does that cross the line? "That's a philosophical question executives need to wrap their arms around," he says. "They need to figure out what are they comfortable with and what are they not comfortable with."

Just as it took Facebook scandals to make consumers more aware of who was using their data and how, Kropp believes that there will be incidents in which a company has collected employee data and "done something terrible with it." But he doesn't think that will end the practice. The potential of data collection is too great.

"We'll make a lot of mistakes along the way, but there's a steady march in one direction: The technology will only get better. Our ability to garner insights from the technology and our knowledge of how to act on these insights will only get sharper," he says.

Tam Harbert is a freelance technology and business reporter based in the Washington, D.C., area.

Explore Further

​SHRM provides resources to help companies manage their monitoring and surveillance policies and protect workers' privacy.

Book Blog: Complying with Employment Law Employment is a highly regulated relationship. That means employers must familiarize themselves with a wide variety of laws affecting employee privacy, time off, equal employment opportunity, benefits and termination, to name a few affected areas.

SHRM Toolkit: Managing Workplace Monitoring and Surveillance
Read about the employee-relations impact and legal consequences of workplace monitoring, with recommendations for establishing a companywide policy.

Recording Conversations in the Workplace
Employers will want to ensure that any no-recording policy does not interfere with employees’ rights to engage in protected concerted activity.

Telephone Monitoring Policy
A sample policy on company practices regarding telephone monitoring of employees’ calls when using company resources.

Policy Acknowledgment Form
A sample workplace monitoring and surveillance employee acknowledgment form.