Episode 204: Employee Monitoring… Where’s The Line?

On this episode of What the Hell Just Happened?, CEDR’s resident Compliance Expert Nora Gustafson joins Paul and Amanda to discuss some important considerations for an employer to keep in mind if they’ve elected to start electronically monitoring their employees’ activities. Along with moral considerations, there are lots of privacy laws that need to be taken into account to make sure the monitoring is done legally, and some of them might surprise you!

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Nora: Hi, Paul.

Paul: Hello, Nora. I’m excited to have you in the pod room in the podcast room. What do we call this? Is it the pod room casting?

Amanda: Yeah.

[Amanda laughs]

Paul: OK.

Nora: I like pod room.

[Nora laughs]

Paul: It’s called the pod room from now on. And I’m excited to have you in here because I know what the subject is going to be. Again for everybody a lot of times I get a little bit ambushed by this, and I was just ambushed with it a few minutes ago. And it’s been a while since Nora and I have done a kind of a question and answer thing. So I’m kind of excited about this. Nora, you picked a really good one.

Nora: Oh, cool. Good. Last time I picked a pretty bland topic so I tried to come with something more interesting.

Paul: But it’s supposed to be a little controversy. Yeah. 

Nora: Yes. 

Paul: All right, let’s let’s. OK, so how are we going to pose this?

Nora: Ok. Well, there’s a fact pattern that I will lay out there for you and our listeners, and then we’ll go from there. So this is all over the news. So maybe you’ve heard about it already. But basically what happened in this situation is we have a Florida based software company that’s hired an employee from the Netherlands who’s working remotely. And they request that this employee attend an all day training and have his webcam on all day.

Paul: OK.

Nora: And the employee refused, saying, you know, that it was a violation of his privacy, that it made him feel uncomfortable that they had you know, he was sharing his screen. 

Paul: Mmhmm.

Nora: They knew exactly what he was doing on his computer. So there’s really no need for the webcam. The company ended up firing him for refusing to work and he sued- the employee, sued for wrongful termination action. And this was all decided under international law because the employee was working from the Netherlands. And the court decided that against the employer and said that the employee has a right to respect for life- or respect for private life. And cited a bunch of international law basically saying you know, that there are strict conditions for observing employees and that this was an intrusion on the employee’s private life. And my question for you, Paul, is how do you think this would have played out if the employee had been working in Florida and not the Netherlands?

Paul: Um, I think Florida is going to not even accept the case. I don’t think that the Department of Labor would even take that well. Florida doesn’t have a Department of Labor. You have to go to the feds. So I don’t think the feds would take this case either.

Nora: Yeah. I don’t even know that there would be a basis for a wrongful termination claim from right to privacy.

Paul: No, no, I don’t, I don’t think so. I mean, I think we’re probably going to get into it. I think there’s a lot of factors that should be present before you make this request of someone. I think that the Florida company may have acted a little rashly, but I don’t even know if that’s true because I don’t know how this played out. But I think basically what they’re saying is we’re trying to recreate an in-person meeting. And no one would say to you, hey, I’ll come to your meeting, but I’m going to wear a hood the whole time so that you can’t see me. And I may be doing some things while everybody else is talking. I’ll be inside my own little tent. Yeah. Let’s not use the hood. Let’s use a tent.

[Nora laughs]

Paul: So they’re going to bring their own tent, and they’re going to be inside the tent, but they will be in the meeting. But they may be doing some things inside of the tent that have to do with their own personal stuff. They’ll participate in the meeting when they decide that they should be…I mean, am I being a little facetious here?

Nora: No. And I think that that was the employer’s argument in this case.

Paul: I’m paying you.

Nora: Well, and if you were in the office, we would be able to see you. 

Paul: Right.

Nora: Your coworkers would be able to see you all day at the training. So what’s the difference?

Paul: I also well, my first thought is, if  this plays out in the international court where there’s a different set of rules and the Florida employer didn’t understand the set of rules that they were playing.

Nora: Right. Yeah, they probably didn’t.

Paul: Yeah, they, they, they thought they were playing by Florida rules and then found out they’re playing by international rules. And those rules are what those rules are. I mean, I would hope that there’d be a way that you could overcome this, this objection. Um, an advance notice. I mean, that’s something that we do in policy is we let employees know that we can monitor our systems. And I know all kinds of people listen to this, and it feels creepy to be monitored. I get that. I do get that. But I do want to say to all of our listeners, we’ve been doing this for a long time. And through that monitoring, sometimes we’ve been empowered to go look in places. When I say we, it’s we’re an advocate with the employer. So we’re like, go look at this. And we found millions of dollars and theft and embezzlement and really some pretty bad activity. I mean- we’re not I’m not just talking out there going to a porn site on- you know, on lunch. I mean, there’s activity going on that can only be discoverable and used if you give advance notice. And there’s quite a bit of it going on out there. So I get the monitoring thing. I’m on the side of the employer, but I can certainly feel the employer’s side of I just don’t want to be monitored all the time.

Nora: Right. And there’s the idea, too, of like you don’t necessarily want your private home being broadcast-

Paul: I agree.

Nora: -by the office. So there are those things you can do to kind of block your screen. So you can just see the employee. 

Paul: Good point.

Nora: Also, do you really need to set their requirement? Like you must be on the webcam all day for 8 or 9 hours as opposed to, you know, during your breaks, you can obviously turn your camera off and-

Paul: Right.

Nora: – things like that. So setting some kind of reasonable guidelines around it, I don’t know if that would have changed the decision here, but it is advisable, you know, for any employer just to be reasonable about these types of policies. There’s no reason for an employee to have to have their webcam on all day long.

Paul: OK, so H.R. nerd here for one minute. It’s important to understand that we can set rules and expectations as employers. But we can’t take away an employee’s rights by doing it. So we can’t say, hey, by the way, because you work for us, we don’t pay overtime if you work more than 40 hours, you’re about to agree to something else by coming to us. So as much as I as you and I point out, setting some expectations, saying this is if you take this job, we’ll have meetings, you’ll be required to have your camera on. If that does not comport with the international law which applies, we can’t do anything about it. However, sometimes that’s not the case. And there is that expectation in informing that employee or that other party about what is required that sets the stage for an employer to be able to ask for the things that they need to ask for.

Nora: Yeah, I get what you’re saying. You know, a lot of times these types of things, at least in the US, come down to a reasonable expectation of privacy, to be surveilled, to be surveilled in that space. 

Paul: Yeah.

Nora: And if you’re on notice that you have no privacy in that space, then you have a lot better argument when you’re in the courtroom.

Paul: Absolutely. And I’ve seen, I’ve actually seen, I’ve actually seen this play out.

Nora: Oh, really?

Paul: Yeah. Where we had an employee who bragged to her boyfriend that she- I can’t remember the exact details, but roughly she was stealing she was kind of playing the, the employer. And then she was going to leave with everything that she had stolen and meet her boyfriend in the place where she was moving and everything. And she was like, they’ll never be able to find me. And we found that in her communication.

Nora: Hmm. 

Paul: And I believe that they may have introduced it into, into the record. And they tried and she tried to get it un-introduced and in the policies, what made it possible.

Nora: Right. 

Paul: You know, I see everything out there. There are mouses that, that are automatic that move. And they’re kind of like radar detectors. So the same people who make the radar make the radar detector. And so as the radar for the cops gets better. So does the radar detector, and they’re playing both sides of it. So as soon as these mice came out, that… mouses?

[Paul and Nora laugh]

Paul: What do we wall them? Is that what we call them? 

Nora: The mice.

Paul: Are they, are they mice? As soon as the mouses as soon as the self-limiting mouse came out, the technology immediately re-programed itself. And can detect whether or not someone is using one or not.

Nora: Right. And that’s the other issue here that’s similar. That’s in the news a lot are these programs that are monitoring employees’ computers for activity.

Paul: Yeah.

Nora: And, you know, this was a recent on The Daily Show, a whole-

Paul: The Daily podcast?

Nora: Yes. On The Daily Podcast

Paul: Wait a minute. Let me say this… the right way. 

[Nora laughs]

Paul: I’m making fun of the person who does The Daily because… I… always wait for him to say the next word… because he… pauses for effect.

[Nora laughs]

Nora: Yeah. He has his own unique way-

Paul: Oh, okay. I’ll stop there. Yes. I appreciate The Daily. I like the Journal better. I have a little hard time with the host of The Daily, although they do have a different broadcaster on there, and she doesn’t do the halting thing as much as he does. It’s crazy. He affects his interviewees. They, they begin to pick up the effect of this delay. And the next thing you know, everybody sounds like him. It’s wild.

Nora: Like a Southern accent.

Paul: No, it’s not a. Well, yeah, it is-

Nora: They’re contagious. 

Paul: Are you making fun of me? Wait a minute. 

[Nora laughs]

Paul: Anyway, we were saying they were having a story. What was the story?

Nora: So they’re talking about how a lot of larger companies now have fully remote staff now that after the post pandemic and their use utilizing this software that can track their employees work.

Paul: Uh huh. 

Nora: And activity constantly on their computer, even to the point where they are logging people in and out of work based off of whether they’re using computer or not.

Paul: They’re impacting their pay. 

Nora: Correct. 

Paul: Logging them out. 

Paul: Yeah. That feels like a wage number violation. I know. I can feel the arguments for being able to do it. Like if I went into your office and you were never there and I could observe that you were always out in the parking lot on your phone and I were paying you by the hour, then I would be able to document that. But I would not I would not feel comfortable doing it from an H.R. Compliance or on an ongoing basis. So I might document it. I might actually dock your pay, but it would be after I warned you that I keep checking on you and you’re not at your desk. And it would really be a disciplinary process whereby you’re not working or present where you’re supposed to be at that point, I feel comfortable taking maybe the drastic step of, of clocking you out or making you clock out or writing you up or whatever that looks like.

Nora: Yeah.

Paul: But just doing it automatically to save money. Yeah, I don’t, I don’t think that’s probably a good idea. And how can you prove? I mean, yeah.

Nora: Yeah. And that was the whole argument on the podcast. These employees are saying I, you know, I’m on the phone with somebody in a meeting, there’s lots of work. I could be, you know, taking notes on the side. There’s all kinds of work that you could be doing that’s not on your computer. And also there’s lots of, you know, breaks that are less than 20 minutes should be paid anyways.

Paul: That’s right!

Nora: So that there’s a lot of things to consider there. And any time an employee says that they’re working and you don’t think they are and you dock their pay for it, you’ve got to have really solid-

Paul: Really, really solid guidance there. Do they get evidence? Did you listen, did you listen to it? I

Nora: I did.

Paul: Did they get into the wage and hour issue.

Nora: They didn’t touch on that, far as I can remember. And that was like, the, the issue that was screaming out to me.

Paul: Hay, If you’re listening to us daily, we’re here, we’re available.

[Nora laughs]

Paul: We’d be happy to do 20 minutes with you and explain to you the most important part of this story. It might take us… a second to get to the… point. But I think I’ve ruined our chances of getting the phone call.

Nora: But you know, you’ve heard it here first everyone. 

Paul: Everybody heard it here first. OK, well monitoring is the thing. You got to be careful about it. If you’re here in the United States, there’s a process for going through this. You can’t just log into somebody’s computer, even your own computer, and start monitoring people and think that it’s OK. You know, there’s just a lot about this. So you want to make sure that you learn more about it and that you, that you’re you know, every state’s a little different. There’s not a lot of rules out there, but there are rules. And it, it folds over into federal law about wiretapping, believe it or not, asking people to turn on their video and record what they’re doing all day long.

That’s a whole nother, that’s a whole nother animal. So don’t just make this stuff up. Make sure that you understand, you know, the rules where you are, right?

Nora: Yeah. And a lot of it has to do with your written policies.

Paul: Yep

Nora: And notice.

Paul: Yep 

Nora: So, you know, that’s where the handbook comes into play and is really important.

Paul: OK, all right. Now, this is great. This is fantastic. I mean, this is really, a really good happening now kind of subject. And it’s not going away now. 

Nora: No.

Paul: This is going to be an issue more and more in the workplace. And we got to figure it out.

Nora: Right. And we may be seeing more and more laws get passed to address these specific issues as they become more and more in the news and prominent. 

Paul: Yeah. 

Nora: Yeah. 

Paul: Thanks. 

Nora: Yep.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Nov 15, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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