Ever-Changing Technology Creates New Opportunities, Obligations for Monitoring Employees

December 3, 2015

Published in New Hampshire Business Review (12/3/2015)

As technology evolves, employers are given more ways to access information about employees, as well as new methods for monitoring their activity.  From smart phones to social media, keeping tabs on a workforce can be done immediately, conveniently, and accurately.  The temptation is understandable.  However, just because this information is available does not mean it is appropriate to use or review.  In trying to balance the privacy rights of an employee with the business interests of an employer, here are a few key issues to keep an eye on:

Social Media – The use of social media has become pervasive in the workplace, and employers must address the use of sites like Facebook, Twitter, and LinkedIn.  At this point, creating a social media policy still requires navigating through gray areas.  There are, however, some definitive guidelines both nationally and locally to help in crafting a reasonable policy.

At the federal level, the National Labor Relations Act protects the rights of employees to act together in addressing issues such as work conditions.  The National Labor Relations Board (“NLRB”) has found that this policy extends to certain work-related discussions by employees on social media sites.  Since the NLRB began addressing social media cases in 2010, two prevalent points have come to the forefront: (1) employees’ comments on social media are not normally a protected activity if they are simply complaining about work in a general context, but (2) an employer’s social media policy cannot be so broad that it prohibits activity protected by federal labor law, such as discussions amongst employees about work wages or office conditions. 

At the state level, New Hampshire law specifically addresses social media in the employment context.  Under RSA 275:74, employers are prohibited from requiring – or even requesting – that an employee: (1) turn over login information for a social media account, (2) add the employer as a contact, or (3) reduce the privacy settings of an account.  In fact, even if an employer inadvertently acquires this information, it may not use it to access an employee’s account. However, an employer may limit and monitor the use of social media on employer-provided equipment, and can request login information for an account obtained by virtue of the employee’s employment relationship. 

Tracking Apps – Employers are increasingly utilizing GPS-enabled technology in order to monitor employees outside the office.  While this type of tracking is rather common with vehicles, it is also now being used through employees’ smartphones, and understandably so.  Tracking apps for phones are easy to install, cheap to maintain, and remarkable accurate.  However, if a slew of recent lawsuit are any indication, these apps also pose a potential liability for employers.  While a company may have legitimate reasons for monitoring its workers (e.g. truck drivers, on-site salespeople), the data collected can often cross over into the employee’s private life. 

Few courts have addressed the issue of tracking apps in the employment context, but generally, companies are only allowed to use such technology on company-owned equipment, and if the employee does not have a reasonable expectation of privacy in its use.

Given these parameters, there are a few steps an employer should take before implementing any tracking program: (1) ensure that GPS monitoring is justified by a legitimate business interest.  Business-related purposes may include the need to monitor employee productivity, a concern for safety, or to track the use of an employer’s resource like a company car.  (2) Create a GPS tracking policy that sets clear monitoring boundaries.  All employees should understand the reasoning behind the company’s use of the monitoring, the manner in which it will be conducted, and how the employer will use the data.  If disabling the tracking technology will result in discipline, notify employees of the potential consequences in advance.  There are even some apps that set these parameters, automatically disabling the GPS function when the employee is off the clock.

Mobile Office – While social media and tracking apps offer opportunities where an employer may want to monitor its employees, the use of portable technology by employees away from the workplace and outside scheduled hours creates a situation where an employer must monitor the activity.  If workers are using smartphones or laptops to respond to work-related emails, texts, and voicemails outside the office, there is an obligation on the employer to properly record and pay the employee for this time.

To the extent a company allows or expects off-duty mobile work by employees, there should be a policy in place.  Especially for non-exempt workers, the policy will want to address working off-the-clock, unauthorized work, and how to report when such work is performed.  Managers and supervisors of these employees must understand how sending communications outside normal work hours may violate the policy.  And, if necessary, employers may consider implementing policies like “email curfews” to safeguard against pressuring non-exempt employees to perform unauthorized work after hours.     

Kenton Villano is an Associate in the Litigation Practice Group at the law firm of McLane Middleton, Professional Association. Kenton can be reached at kenton.villano@mclane.com or at (603)628-1180.