Bossware: Legal and Practical Implications of Tracking Employees

With remote work now commonplace, employers’ desire to monitor employees’ productivity has vastly increased. While tracking technologies, or “bossware,” can help assess productivity, employers must consider legal and practical obligations before implementing such software. 

Benefits of Tracking Technologies 

Tracking technologies have become more popular in the remote work environment, mainly because many employers see the ability to monitor employees’ online activities, particularly their productivity, as a replacement for the ability to check in on employees in-person at the office. 

Among other functionalities, tracking technologies offer employers the ability to log keystrokes, take screenshots, record mouse movements, activate webcams and microphones, or periodically snap pictures, all without an employee’s knowledge. A growing subset of tracking technologies also uses artificial intelligence and algorithms to process and analyze the data collected. 

While this may sound like “big brother,” employer utilization of various employee tracking technologies is hardly new. Even before the pandemic, employers utilized such technologies for various legitimate business reasons, such as: 

• Monitoring employee performance
• Tracking the amount of work being performed on a given project
• Tracking attendance
• Collecting proof of hours worked, and
• Ensuring security against possible data breaches and investigating any such breaches. 

Over the course of the pandemic, these technologies have become more sophisticated and more ubiquitously used as many companies shifted to “online first” or hybrid workplace models. 

Under the right circumstances, employee monitoring can help employers learn how employees work best, decrease distraction, promote safety, simplify timekeeping, and evaluate performance. That said, employers who use tracking technologies, or are considering doing so in the future, should be aware of the legal and practical risks involved. 

Legal Considerations and Risks

Under federal law, employers generally have a right to monitor employees as they perform work. However, there are state-specific eavesdropping laws that must be taken into account before the implementation of any “Bossware” or other similar tracking technologies. Although the specifics of these state laws vary, generally speaking, employers should: (i) avoid targeting or adversely impacting any legally protected classes through monitoring; (ii) keep monitoring devices out of non-work areas (such as bathrooms, breakrooms, etc.) and applications (such as personal apps on employer-issued devices); and (iii) be consistent in their application of employee monitoring and any related discipline, to help ensure parity and avoid discrimination.        

Legal consent obligations 

Employers must also be mindful of various consent obligations. In terms of the recording of meetings or conversations, whether conducted in-person, via phone, or electronically, federal law requires only one party to the meeting or conversation to give consent to record. Such consent typically is a given, as the recording person or party certainly will have consented to record. However, many states require all parties to consent before recording. If an employer has operations and plans to do any monitoring in any such state, the employer must obtain appropriate consent.      

Besides recording conversations, tracking technologies may also be used to monitor other aspects of the workforce, such as keeping track of each employee’s time worked or efficiency. When doing so, employers may have disclosure obligations stemming from state-specific laws. For example, New York, Connecticut, and Delaware presently have laws governing the electronic monitoring of employees. New York law requires private employers to notify all new employees of monitoring activities upon hire and to post a “notice of electronic monitoring” in the workplace. Connecticut law requires private employers to notify monitored employees, but it does not contain any posting or consent-related requirements. Delaware law allows private employers to choose between providing employees with a daily notification of electronic monitoring or a one-time notification that is affirmatively acknowledged by the employee in writing.   

Legislation to follow 

Other states are beginning to follow the leads of New York, Connecticut and Delaware in enacting laws and regulations governing the electronic monitoring of employees. For instance, in April 2022, California introduced the Workplace Technology Accountability Act, which, if passed, would impose significant restrictions on the use of tracking technologies in the workplace. To name a few, the Act would:

1. Prohibit employers from monitoring workers off-duty, on personal devices, or in private areas.
2. Prohibit employers from using technology that monitors facial recognition, gait, or emotions.
3. Allow workers to view and correct any data collected.

As the use of this technology continues to grow, it is expected that other states will jump on the bandwagon and introduce their own laws and requirements. 

See More: How to Prepare Your HR Department for New Legislation (CCPA & SHIELD)Opens a new window

Best Practices for Employers and HR Departments 

Beyond legal considerations, employers and HR professionals should also be mindful of the practical implications tracking technologies can have on their workforce.  

To be sure, the ability to electronically keep track of time worked and evaluate employee performance at a systematic level has clear benefits, not the least of which could be improved productivity and engagement in remote work settings. However, employee monitoring also runs the risk of increasing stress and breeding low morale, as employees can feel micromanaged and distrusted. These kinds of issues, in turn, can increase employee turnover in today’s highly mobile job market.    

To avoid negative repercussions, employers considering utilizing any monitoring software should evaluate their specific workplaces, including culture and legitimate business considerations and needs vis-à-vis such software, and then seek to implement realistic and appropriate standards only.  

As a best practice across industries, employers who decide to utilize monitoring software should educate their employees on why the software is being put into place, how it will work, what it is being used to evaluate, and how it may affect employees. This includes letting them know any potential disciplinary consequences. In that regard, employers would be wise to consider using monitoring technology as a method to smartly evaluate and improve overall trends, as opposed to penalizing individuals. Regardless, a clear approach with transparent, appropriate up-front communication to employees should help employers level-set effectively and reduce uncertainty and discontent among their teams.

Continue the conversation surrounding the effective use of bossware within your company. Ensuring compliance with the ever-changing legal landscape while keeping employee and company success top of mind will allow employers and HR professionals to navigate the remote work environment toward long-term success. 

Have you implemented bossware in your organization? What legal and ethical aspects have you taken into consideration? Let us know on FacebookOpens a new window , TwitterOpens a new window , and LinkedInOpens a new window . 

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