Respecting Employee’s Privacy Rights While Monitoring Remote Workers

As unbelievable as it may seem, it’s not that long ago that remote work was considered a job perk. Some companies offered occasional days off to entice top talent and improve employee satisfaction. But people who worked at home full-time were typically freelancers and consultants.

Fast forward to 2020, and working from home is a widespread phenomenon that’s upending the concept of work. A year into the pandemic, nearly 60% of the American workforce was working at least part of the week remotely; 41% were fully remote. It’s a striking number compared to the 17% of U.S. employees who worked from home five days or more per week before the pandemic.

With many employees saying they want to make remote work permanent, the issue of remote worker rights has become a key business law consideration. More specifically, employers and employees alike must understand what privacy laws apply to Florida’s currently estimated 627,000-plus remote workers.

Business Law 101: What is An Employee’s Right to Privacy?

The rise in remote work has led to an increase in organizations using electronic monitoring software to, among other things, maintain employee productivity. So-called “bossware” often includes keystroke logging, GPS tracking, access to webcams, and computer screenshots.

But productivity is not an employer’s only goal. Businesses also use monitoring systems to protect trade secrets, avoid data breaches, and find ways to make remote work easier for their employees.

In Florida, monitoring employees requires balancing privacy rights against the need to prevent potential claims based on employee misconduct or negligent hiring. The state imposes restrictions on surveillance beyond those established by federal law and limits how extensively an employer can monitor an employee’s actions, speech, or correspondence.

Employee privacy rights in Florida include:

1. Additional privacy protections based on the state’s constitution, statutes, and common law.
2. Most employers may not search an employee’s private vehicle for concealed weapons.
3. Interception and disclosure of electronic communications require the consent of all parties in a private conversation.
4. Protections against several categories of computer surveillance.
5. A requirement that employees must be notified if their personal information is released to an unauthorized person.

Legal Guidelines for Employee Monitoring

Improper or excessive employee monitoring can cause both potential legal liability and significant morale problems. For while technological advancements have made it simpler to monitor remote employees, they’ve also made it easier to violate the law.

What can your business do to ensure it respects an employee’s privacy rights during monitoring?

• Understand the technology. Before deploying any monitoring software, make sure you’ve carefully reviewed its features. Seeking input from your legal and HR department is essential for minimizing legal risk and maintaining employee trust. Smaller businesses without an internal legal department should consider consulting with a business law attorney.
  
• Establish an acceptable use and electronic communications policy. Companies should consider what their employees’ expectations are concerning privacy. A well-drafted acceptable use and electronic communication policy lets in-house and remote employees know what they can expect when using your organization’s systems.
  
• Monitor the monitors. Unfortunately, it’s all too common for employees who perform monitoring tasks to feel empowered and, believing they’re helping the organization, to go too far in their surveillance. Because that can create a huge legal risk for your company, it’s critical to establish and oversee monitoring boundaries that maintain compliance with existing privacy laws.
  
• Be prepared to investigate. Whether you’re monitoring for nonperformance, malicious insider activity, or other problematic activity, it’s crucial to have a process in place beforehand that addresses how your organization will investigate and manage any possible breaches or misconduct.

While it’s true that an employer’s interests have often been found to legally outweigh employee privacy claims, no employer has the right to discriminate against, harass, or otherwise infringe on an employee’s state and federal rights. Because it’s often the case that updates to monitoring technologies outpace employee privacy expectations and laws, it can be helpful to speak with a business law attorney about any concerns you have respecting your organization’s privacy policies and procedures.

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