As remote work, digital collaboration platforms, and cybersecurity threats continue to expand, many employers are increasingly relying on electronic workplace monitoring tools. These tools may include email and messaging review, keystroke logging, video surveillance, GPS tracking, and monitoring of company-issued devices. While electronic monitoring can offer meaningful operational and security benefits, it also raises significant privacy and compliance risks that employers must carefully manage.

Benefits and Risks of Electronic Monitoring

From an employer’s perspective, electronic monitoring can serve several legitimate business purposes. Monitoring may help protect confidential and proprietary information, detect data exfiltration or insider threats, ensure regulatory compliance, investigate misconduct or harassment complaints, and improve productivity or quality control. In regulated industries, monitoring may also support recordkeeping and supervision obligations imposed by federal or state law.

Despite these benefits, workplace monitoring can expose employers to legal claims, regulatory scrutiny, and reputational harm if implemented improperly. Overly intrusive or undisclosed monitoring may give rise to claims for invasion of privacy, violations of wiretapping or surveillance statutes, retaliation allegations, or unfair labor practice claims. Monitoring can also negatively affect employee morale, trust, and retention—particularly where employees perceive constant surveillance or lack transparency about how data is collected and used.

Key Federal and State Legal Considerations

At the federal level, the Electronic Communications Privacy Act and the Stored Communications Act generally prohibit the interception of electronic communications, subject to exceptions for employer-provided systems, ordinary course of business activities, and employee consent. The National Labor Relations Act may also restrict monitoring that interferes with protected concerted activity.

State laws add further complexity. Several states—including California, Connecticut and New York—impose notice or consent requirements for electronic monitoring. California, Florida, Louisiana, and South Carolina explicitly recognize residents’ rights to privacy, which may affect the implementation of employee monitoring systems. Other states restrict audio recording, GPS tracking, or off-duty surveillance, even where devices are employer-owned.

Practical Steps to Reduce Privacy Risk

Employers can reduce the likelihood of privacy-related claims by taking several proactive measures:

• Provide clear, written notice describing what monitoring occurs, when it applies, and what data is collected.
• Obtain employee acknowledgment or consent where required or advisable.
• Limit monitoring to legitimate business purposes and avoid collection of personal or off-duty information.
• Apply monitoring consistently to avoid claims of discrimination or retaliation.
• Implement data minimization and retention controls to limit access, storage, and misuse of monitored data.
• Train managers and IT personnel on lawful monitoring practices and escalation protocols.
• Know and comply with the electronic monitoring laws applicable to the geographic footprint of your business.  When in doubt, consult counsel.  

Electronic workplace monitoring can be an effective risk-management and compliance tool, but it must be implemented thoughtfully and lawfully. Employers should regularly review their monitoring practices, policies, and technologies to ensure compliance with evolving federal and state privacy laws while balancing business needs against employee privacy expectations.

For additional information, please contact Mike R. Rahmn.