Employee Survival Guide® - Employer Monitoring of Remote Employees During the Pandemic

Episode Date: February 1, 2022

In this episode of the Employee Survival Guide, Mark explores the very relevant topic of employer monitoring of remote employees during the pandemic.  From Zoom calls to desktop spyware, employers are watching employees and everything that the microphone on your computer device can pick up. Employees have no privacy at work, even remotely in their own homes.  Mark points out that nearly 80% of employers use software monitoring on computers and devices issued to employees, and even on their personal devices.  Listen to the research Mark has collected and his helpful hints to protect yourself. Listen to the Employee Survival Guide podcast latest episode here  https://capclaw.com/employee-survival-guide-podcast/If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn.  We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts.For more information, please contact Carey & Associates, P.C. at 475-242-8317, www.capclaw.com.The content of this website is provided for information purposes only and does not constitute legal advice nor create an attorney-client relationship.  Carey & Associates, P.C. makes no warranty, express or implied, regarding the accuracy of the information contained on this website or to any website to which it is linked to.If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where we tell you, well, I tell you what your employer does not want you to know about, and then some more. Today's episode is actually quite a current topic. It's the employee monitoring of remote workers during the pandemic. Yes, that little camera in the laptop looking at you. Employers have a legitimate business interest in managing employees, even remotely. Employees may or may not have a reasonable expectation of privacy

while working remotely over their own personal computers and cell phones. Where's the balance? Should there be a balance? Why are employees entitled to so little protection? What happens when other family members' privacy is negatively impacted at the hands of the employer's desire or right to monitor employees? These are the questions I've been thinking about. to employees? These are the questions I've been thinking about. In the digital reality, employers can easily monitor their employees in various ways, ranging from ordinary monitoring, such as reading employees' emails, to more sophisticated approaches, such as using a wristband that can

track every move the employee makes and identify every time she has paused to scratch or fidget, or installing an application that can constantly record and analyze an employee's voice and tone. The technology of today makes this whole process of supervising easier to manage. It enables the employer to supervise employees even without their awareness, often at a relatively low cost. Consequently, supervising employees has become a simple and common routine in numerous workplaces around the world. Types of employee monitoring software. In September 2021, employer demand for remote employee surveillance software increased 66% higher than in 2019. In fact, there

was a 63% increase in software purchases since March of 2021. Here's a short list of employee monitoring software being used by your employer on your computer or your device. HubStaff, TimeDoctor, FlexiSpy, ActiveTrack, Spyrera, TerraMind, DeskTime, and WorkTime, to name a few. Here's a list of what these software providers are offering in terms of their services. Software monitoring, remote control takeover, which means they can just take your computer and lock it down in the event they want to fire you. Keystroke logging. We've talked about this in the past, but it essentially is everything you type on your computer.

The employer can see and go to those pages and it can be everything from pornography to your time on Facebook or Instagram. Screen monitoring. Again, it's self-evident. They can look at what you're watching. So if you're Netflix or watching a binging of an episode, they can see it. Likewise, internet monitoring and filtering. Call tapping. Location tracking.

Webcam surveillance. That one's a doozy. You know, they can watch everything you're doing at home and you have no idea. Audio recording. Email monitoring. IM monitoring. Mobile device access. Yes, your cell phone can be accessed by your employer.

User action alerts. Time tracking. Overall, here are the percentages of what employers are actually using. 81% of employers offer keystroke logging. 61% provide instant messaging monitoring. And 65% send user action alerts. 38% are capable of remote control takeover. Remote working via Zoom and Teams. There you are, working in your dining room, on your personal computer, owned by you. Your remote work situation requires that you access the employer's company proprietary portal to work on files, talk to colleagues via Slack, or attend a Zoom call, or Microsoft Teams meeting, etc. The microphone on your computer or device is very powerful

and will pick up everything you say, and it will pick up everything else going on in the house. Imagine your family member in the next room is talking to another third party about their cancer treatment. Death in the family, listening to a privileged discussion between a client and her attorney, possible proprietary work information from their employer, financial information discussion with a broker, a stock trade, inside information about a company stock, medical discussion with a physician or mental health provider, or your child's learning disability. I can make this hypothetical more serious, but you get to the idea. Right now, there is absolutely no way to monitor this on your end, manage it, or even prevent the invasion of privacy that is running rampant through 122

million households across this country. What in the world are we going to do about this? I can only offer the following practical suggestions to deal with employee monitoring during the pandemic. First, make sure to work only on an employer-provided computer device. Resist your employer's efforts to make you log into business meetings, etc. via your own computer. This will ensure your privacy of the contents of your own personal computer is not being monitored by your employer. The same suggestion would apply to your personal cell phone. Second, work in a location in your home where you can control the household traffic and preserve the privacy of others in your home. Third, attempt to locate the employer's employee monitoring policy and determine the scope of the surveillance. This information will inform you of the boundaries of the monitoring and what to avoid

on your end. Also, employers are required in certain states to provide advanced notice of employee monitoring. And the next topic, New York State enacts employee monitoring law. On November 8, 2021, New York Governor Kathy Hochul signed a new law requiring employers to provide written notice to employees and obtain consent before engaging in electronic monitoring of their remote work in office electronic communications. The new law takes effect May 7, 2022. The law applies to any employer who has an office in New York State. And Connecticut and Delaware and other states have similar employee electronic monitoring laws requiring notice and consent.

Emails are company property. Many employees I have spoken to over the years do not understand the rules of engagement regarding email. Simply, employees do not understand what the work email is actually owned by the company and the employee must preserve and not abuse it. There is absolutely no privacy in your employer email account. What if you are accessing your personal Gmail account on a work-on-computer or device? If your employer has software that can monitor your computer or device, typically not in real time due to federal laws regarding wiretapping. I always advise new and existing clients to take their private conversations offline so there's no trace on work-related devices. This will ensure

that you are not sharing your information inadvertently with your employer, including photos that you'd never want to have known to your employer or just content of your own device. People would write or save copies of their wills or medical information, but you get the picture. Employer-issued cell phones and privacy. If your employer issues a company-owned cell phone, you do not have a reasonable degree of privacy using that cell phone. The employer has a right to access all of your data usage on the phone, including personal information. So many employees I have talked to have company-provided cell phones they use for both business and personal use. That's a huge mistake.

It is tempting to accept the employer's offer to pay for your monthly service fee, but who really has control over the phone? I would argue that the employee has control, but some employers do not share the same opinion. Ownership of a cell phone's device alone does not guarantee privacy interests are being protected. Now, personal cell phones used for business purposes may deserve more constitutional protection of privacy. Here's what a federal court has said regarding this issue. Quote, a phone not only contains a digital form of many sensitive records previously found in the home, such as a bank statement, it also contains a broad array of private information never found in the home in any form, such as internet search results in browsing history and other personal information maintained by the user.

So there's an argument to be made that there is a protection of privacy issue if the issue came up that the employer was invading privacy of the personal information. away from this is that the remote surveillance of employees during the pandemic is absolutely the wild west of the issue of employers just hunkering down to secure that they have the ability to monitor employees, give them the security they're feeling about it instead of the insecurity that they had at the start of the pandemic two years ago. There's an enormous increase in the amount of employers using employee monitoring software. So let's just be realistic about this as employees and wake up to the idea that somebody is watching you. Don't freak out about it. It's just the employer has a right to monitor.

But there are now states that implemented policies to protect you. They're new, but they're – and how we're going to enforce them is a whole different idea. I mean, there's no one there to sit and monitor the software on that computer. So these are small attempts by states to begin to weigh in and give protection, but it's a lousy start, I'll tell you that. So let's be conservative with what's happening here. Be realistic that somebody is listening into your conversations. And just find out the policy for each company. Go to your HR portal.

If the employer has a policy, read the boundaries of it and become aware instead of just not aware and allowing mistakes. not aware and allowing mistakes. And mistakes can be important in the sense that your personal privacy is impacted if your employer finds out things that you do not want them to know about and what's going on in the household. So I'll make that as a generalized statement, and you can fill in the blanks for yourself with your own personal situation. They range from the issues of medical, situation. They range from the issues of medical disability, your financial affairs, job searching for new employment while you're still working, to the old-fashioned, are you just using the internet on the employer's time? They pick it up. You just don't want to give that away and lead to discipline and reprimand, including termination, if they find out. So let's be good employees, practical. Let's be conservative.

Let's find out the rules. Let's behave like professionals, and you should be okay. And this issue should go away. Please look for new articles regarding remote surveillance as the issue develops, and we'll bring them to you, as always. If you have information you want to share with us or you want to ask about this issue privately, please contact Kerry and Associates, and have a great week. We'll talk to you soon.