Employee tracking technologies are violating Labour Laws- Here’s how

varsha sarkar

August 31, 2023

8:51 am

What does workplace monitor entail?

Employers can keep an eye on their workers’ whereabouts and behaviour by using a range of “employee monitoring” approaches. These methods include staff tracking software, video surveillance, GPS devices, time clocks, and biometric technology. For instance, video surveillance can boost your business’s productivity and security. Shrinkage costs are reduced when thieves are caught on camera.

Systems for monitoring and controlling personnel also perform other essential duties. Their main goals are to stop internal theft, evaluate employee productivity, assess how well the company is using its resources, and gather evidence in the event that legal action is taken in the future.

Laws and regulations governing employee monitoring

Federal and the majority of state privacy laws provide employers discretion over the extent of their employee surveillance programs. There are instances where companies are not compelled to inform employees that they are being observed, depending on state and local laws. Certain laws do call for employee approval.

According to Matt C. Pinsker, an adjunct professor of homeland security and criminal justice at Virginia Commonwealth University, employees often have a low expectation of privacy when on company property or using company resources, such as computers or vehicles.

Companies can track employees for a variety of reasons thanks to the plethora of workplace technologies at their disposal. For instance, to monitor how effectively deliveries are being made, many employers put GPS devices on company cars. But is it against the law to utilize such technology? The answer may soon be “yes” in many instances, according to a recent memo from the chief counsel of the National Labor Relations Board (NLRB).

In a press release sent out by the NLRB stated that “The General Counsel will ask the [NLRB] to adopt a new paradigm for safeguarding workers from employers’ misuse of technology by declaring that an employer has presumptively violated the Act in cases where an employer’s management and surveillance practices, considered combined, would tend to interfere with it uses to track and oversee them, its justifications for doing so, and how it is using any data it obtains unless the employer can prove that special circumstances require covert use of the technologies.”

Based on the paper, using such technologies by employers often has the potential to stifle protected employee behaviour, like conversations about the prospect of starting a union. Unless an employer can demonstrate that the desired results cannot be obtained without the use of these types of devices, the general counsel appears to wish to fully ban their usage.

Federal legislation governing employee monitoring and workplace privacy

The main federal law covering workplace privacy and employee surveillance is the Electronic Communications Privacy Act of 1986. The ECPA allows business owners to monitor all written and verbal communications between employees as long as there is a sound business reason to do so. It also allows for more observation if the worker agrees. However, the ECPA permission requirement can be tricky because it could be interpreted to allow the monitoring of employees’ personal and work-related conversations.

Furthermore, it has been established by a number of federal court rulings that it is acceptable for employers to legally read through the emails that their employees have written. This is so because the ECPA considers any electronic messages that are currently in transmission to be “electronic communications.” These signals turn into “electronic storage” after being sent, which

What information would have to be disclosed? According to the document, the employer would have to state:

Smartwatches, truck GPS devices, and other tracking or monitoring technologies; the justification for why the monitoring is necessary (such as increasing productivity); and the intended use of the data collected from the gadgets. (e.g., tracking progress to production targets).

This letter merely indicates what the current general counsel would want to be the law in this situation as of right now. The NLRB would need to rule in a case adopting this suggested standard or start the administrative rulemaking process in order to make such a change.

To sum up

Any employer, union or non-union, who now employs (or is considering employing) technology that monitors employees may face increased scrutiny from the NLRB, which might make such devices illegal in the absence of exceptional circumstances. All companies should keep an eye on this because, if it becomes legislation, it will severely restrict how and when these kinds of technologies can be used at work.

varsha sarkar

August 31, 2023

8:51 am

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