Monitoring workers: how far is too far? Can companies legally spy on staff?

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In recent weeks, the California Attorney-General made a statement whose influence could ripple across the nation: it’s OK to continuously videotape truck drivers, as long as the recordings in question are for the sole benefit of the drivers’ employers.

And the statement has some asking where the line is when it comes to employee surveillance. In an age of ever-expanding technology and the so-called ‘internet of things’, it’s increasingly easy to monitor things employers never could before.

But the courts are still relatively grey in this area, says Fisher & Phillips lawyer Sally Barron. The most applicable case law in recent history was a 2012 Supreme Court case concerning a government employee who was monitored with a GPS device attached to his car. The court found that it contravened the fourth amendment, but did not clear up the question of when, if ever, GPS monitoring would be acceptable.

And even if there had been a clear rule regarding employee surveillance, chances are that it would have evolved by now, anyway.

“Technology’s changing, and … our expectations about what is private and what is reasonable changes as technology changes,” says Barron.

Certain states, such as Tennessee, have made it illegal for employers to track vehicles without consent. Meanwhile in Missouri and Wisconsin, employers have been banned from inserting microchips underneath the skin of employees – the tiny radio-frequency identification devices can serve as key cards and GPS devices.

While there is no one-size-fits-all guideline for employee surveillance, there are certain ways to stay on the safe side until the matter is fought out in the courts.

Have a transparent policy If employees have a clear understanding of what the company can and might do, that will go a long way to defend surveillance actions in court, Barron says.

Have a specific business-related reason In the 2012 case, the court considered three key factors: whether the monitoring was motivated by a legitimate purpose, whether it was excessive in scope, and whether there was a less intrusive and alternative means of gaining the same information. If the surveillance your company uses can satisfy those requirements for a specific business-related purpose, you’re better protected against litigation.

Get consent Acquiring consent from employees will allow you to address any concerns staff may have and reassure them about the reasons behind the surveillance. And more importantly, “when you have consent it makes the practice much more easily defensible,” says Barron. “What would be the reason for not getting their consent?”

Avoid BYOD While the bring-your-own-device concept can certainly save costs, it may be a cause of legal pain if you also wish to monitor employees’ use of said devices. “When the employer provides a piece of equipment, it's easier to defend a practice of monitoring employer-provided devices,” says Barron. “However, when the employee brings it to work, that clouds the issue a little bit.”

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