Watching You While You Work: Employee Surveillance in the 21st Century

By: Nancy Ordman

New technologies make surveillance easier than ever, whether the object of surveillance is a burglar out to steal the day’s revenue from a bodega or a bank employee stealing from the till – or an office worker stealing the employer’s time by web surfing during business hours. More employers are joining the surveillance bandwagon: according to the American Management Association, 80 percent of U.S. employers have a system of some sort in place, up from 35 percent in 2007. Should the pervasiveness of employer snooping concern members of the workforce? Is it legal? Why do it at all?

Is surveillance legal?

In the U.S., the answer is yes. Lewis Maltby , a Cornell faculty member and author of the book Can They Do That? Retaking Our Fundamental Rights in the Workplace, answers the question by saying that, “employers can do any kind of monitoring they want in the workplace that doesn’t involve the bathroom.” And employers generally are not required to inform employees of surveillance carried out on employer-owned devices, like computers and smartphones. Only two states, Connecticut and Delaware, require employers to divulge these practices.

The primary federal statute in this area is the Electronic Communications Privacy Act of 1986 (ECPA). The ECPA, codified at 18 U.S.C. 101 et seq., bars the intentional interception of any wire, oral or electronic communication, or the unauthorized access to stored communications. The three exceptions are business phone calls, communication where the employee gave consent, and email messages. State laws other than those mentioned above give little, if any, additional guidance.

Employers should cover the types of surveillance used – if any – in their human resources policies, whether or not a statute requires them to do so. New hires and existing staff should ask whether they are under surveillance, what behaviors are unacceptable, and what the consequences are for infractions. Workers should have a “reasonable expectation of privacy” other than areas spelled out in the policy.

Should employers watch employees?

Only about one percent of employees abuse their employers’ trust. How do companies justify the expense of surveillance? Companies can serve their own self-interests and those of their workers through surveillance, sometimes in subtle ways.

Retail staff know to expect cameras in the workplace – some hidden, some not – that are set up to catch shoplifters. These same cameras also provide a measure of safety for sales clerks. Wells Fargo Bank’s recent troubles provide a much more complicated example where better data analysis could have caught the massive fraud that bank employees perpetrated on unsuspecting customers, by charging products and services the customers did not authorize. Smart software could have detected this pattern of sales earlier so that higher-level decision-makers could have stopped the practice before it ballooned and became public.

If employers archive email, they will have records of harassment delivered electronically. Some software can be trained to detect nascent issues or problems that employees don’t report – such as harassment – and intervene. The email trail provides evidence that protects both the employer and the staff member in the event of a personnel action.

Despite the potential positives for employees, not everyone is comfortable knowing that someone or something is watching. The employer-employee relationship should be based on trust and respect, yet surveillance says that the opposite is true. Human resources experts advise employers to build a culture of trust, in part by being upfront about the types of monitoring and their purposes, as noted above. Some managers maintain that staff quickly forgets that Big Brother is watching and goes about business as usual.

What jobs are typically monitored?

Federal and state laws and regulations require that financial institutions maintain detailed records and report certain transactions regularly. The intent of these rules is to catch insider trading; a side benefit is catching other kinds of unacceptable behavior. Other jobs in heavily-regulated industries maintain gigabytes of data on employees, such as OSHA reports.

Beyond these types of jobs, though, any employer concerned about staff productivity, monitoring potential harassment, or preserving evidence against potential lawsuits can opt to institute some form of watching. Some employers have begun to monitor potential employees, searching through applicants’ social media posts using a software program called Fama.

What can an employer monitor?

The simple answer? Just about anything. And not every method is based on fancy technology. Checking up on employees in the office costs only time and can be as effective as monitoring software if the employer is mostly concerned with finding out what employees are actually doing in their cubes.

The more complicated answer is that not all surveillance produces straightforward answers. Tracking websites visited from a specific workstation is simple, so nabbing an employee who spends much of the day visiting sports sites is straightforward. Other potential productivity measurements – counting keystrokes, the number of emails a worker sends – do not necessarily reflect actual productivity or measure distraction. Using monitor-based cameras to catch a worker whose eyes stray from the screen captures the behavior but cannot explain the reason behind the behavior.

A very new approach to identifying potential problems, whether the problem is harassment or an employee whose home life is affecting his or her work, is using artificial intelligence to analyze email. Watson, IBM’s Jeopardy-winning technology, is a tool that several financial sector institutions use to look for problems.

"We take all of traders' emails and chats and run them through our personality insights and tone analyzer and identify whether there’s anger, are they happy, are they sad?" said Marc Andrews, vice president of Watson Financial Services Solutions. “We’re analyzing the behavioral patterns that are associated with misconduct: How do people start behaving right before they get involved in misconduct?”

The potential for false positives – incorrectly flagging an employee as vulnerable or culpable – remains a concern.

Takeaways for employees

The most important point employees should remember is that employers should have explicit surveillance policies and communicate these policies to staff. Law is on the employers’ side, but it is every worker’s responsibility to know and understand relevant policies about surveillance. This is especially true for those that work in fields, like financial services, where they can expect to be watched.

Employers also have a responsibility to manage surveillance technologies carefully.

“The increasingly powerful tools come with greater responsibility for the companies that use it,” according to James Dempsey, executive director of the Berkeley Center for Law & Technology.