Notice of Electronic Monitoring: State-by-State Compliance Guide

Employers often utilize electronic monitoring to assure that expectations are being met within the workplace. Electronic monitoring can track employee policy compliance and data can be used to evaluate customer or client experience.

Not all states allow extensive electronic monitoring of employee activity. States that do permit electronic monitoring sometimes require employers to post a conspicuous notice explaining the types of electronic monitoring used in the workplace. Here’s what employers need to know and how Mosey can help them stay compliant.

What Is a Notice of Electronic Monitoring?

An electronic monitoring notice is a notice provided to employees (and sometimes customers) to let them know that their communications are being monitored by a company or a third party working on behalf of a company. Electronic monitoring notices are necessary whenever an employer collects data related to communications or internet usage.

Electronic monitoring and similar types of surveillance aren’t legal in several states. Some states permit businesses to collect data under specific circumstances. Businesses that elect to engage in electronic monitoring must adequately inform the people who are being monitored.

What Types of Communication and Activities Can Employers Monitor?

The types of communications employers can monitor will vary depending on state laws. States with strict wiretapping laws may not allow employers to record phone conversations. In most cases, employers are allowed to monitor inboxes they own or the internet connections they operate in their workplace.

Communications made using an employer-owned device are often assumed to be fair for an employer to review. For example, websites accessed during work hours on an employer-owned laptop connected to an employer-owned internet network cannot reasonably be expected to be private. In most cases, an employer would be able to review any activity that falls within this category.

Employers are generally never allowed to monitor activity in an area universally deemed private, like a bathroom or an employee locker room.

Do Employers Have the Right To Electronically Monitor Their Employees?

Employers do not always have the right to electronically monitor their employees. Some states outright forbid monitoring, citing privacy laws and wiretapping laws as the reason that most types of electronic monitoring are banned.

Before you begin using electronic monitoring or call recording tools in your workplace, verify that these tools wouldn’t violate your state’s laws. You may not be able to utilize certain electronic monitoring tools even if you provide your employees with an electronic monitoring notice.

What Types of Electronic Monitoring Is an Employer Allowed to Conduct?

The types of electronic monitoring an employer is allowed to conduct largely depend on the laws of the state where the employer is located. States that allow monitoring generally follow the same guidelines.

An employer can monitor any device or service paid for by the company and belonging to the company, including company phones, laptops, and email addresses.

Employers are not allowed to monitor communications from an employee’s privately owned devices, like a personal laptop or personal phone they sometimes use for work. Monitoring can be conducted through apps or inboxes used specifically for business communication. This is as long as the monitoring software is exclusive to the service and does not capture data outside of the inbox or from other operations on the electronic device.

Can You Electronically Monitor Remote Employees?

Employers cannot compel employees to install monitoring software, such as keystroke loggers or webcam motion detectors, on their personal devices. Webcam-based monitoring software could be considered a serious invasion of personal privacy if the employee is working from home.

There is a precedent for employees successfully arguing in court that remote work monitoring software to determine “active time spent working” can be problematic because not all work tasks take place on a computer.

An employee may need to read or arrange physical documents, take a phone call, or complete another work-related task that doesn’t directly involve the use of a computer. Even if an employee were to use a company computer or agree to install monitoring software on their computer, employees can easily challenge the accuracy of monitoring tools and receive settlements for unpaid wages.

What Should You Know About Electronic Monitoring in Different States?

Many states allow some form of electronic monitoring of company communication if employers have good cause and utilize reasonable monitoring boundaries. Most states utilize simple monitoring notices, such as automated “you call may be recorded” messages on phone calls between businesses and customers.

Only four states currently have compliance requirements for formal electronic monitoring notices. Connecticut, Delaware, New York, and Texas have clear-cut protocols for limitations surrounding workplace monitoring and the way employees need to be informed of monitoring protocols.

Connecticut

The state of Connecticut forbids workplace monitoring of areas designated for employee health, break areas, or storage areas. Restrooms, locker rooms, and break rooms cannot be monitored in any way. The law also prevents employers from eavesdropping on private conversations in the workplace.

Business phone lines can be recorded as long as an automated message on the line announces to both parties that the conversation is being recorded. There is no specific law surrounding monitoring internet activity or inboxes, but employers are generally allowed to monitor their own internet connections and inboxes belonging to the company.

Connecticut employers are required to post a conspicuous notice about monitoring in the workplace if any monitoring tools are used. Employers may be fined for violations of electronic monitoring laws. Fines vary based on the type of offense and number of offenses.

Delaware

Delaware employers are only allowed to monitor employee phone calls, emails, or internet usage if they inform the employee at least once per day that their usage is being monitored. A custom heading in an email inbox or browser home page or an automated message while the phone is in use can serve as a daily reminder.

Daily reminders aren’t necessary if the employee signs an agreement to be monitored. The agreement must outline all types of monitoring utilized in the workplace and provide the employee with enough information about how monitoring works to provide informed consent.

Violations are punishable by a civil fine of $100 per violation. In some cases, employees may be able to pursue civil damages against an employer for violating their privacy rights.

New York

New York employers have a very broad ability to utilize electronic monitoring in the workplace. The law states specifically that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system” may be monitored.

The law requires that employers place a conspicuous notice in the workplace detailing the extent of monitoring and an employee’s privacy expectations. Each employee must also be given a written copy of the company’s electronic monitoring policy. Employees must review and sign the agreement, and employers must retain the document for their files.

The New York State Attorney General oversees violations of the law. Employers will be fined $500 for their first compliance violation offense, $1,000 for their second compliance violation offense, and $3,000 per offense for each compliance violation thereafter.

Texas

Texas employers are allowed to conduct electronic monitoring in any area of the workplace except bathrooms and locker rooms. They are free to use video monitoring and electronic monitoring in all areas of the business and on all company-purchased equipment or services.

Texas is a one-party consent state for audio recording. Only one person needs to consent to a recording in order for that recording to be legally obtained. It’s illegal to monitor a conversation where neither person is aware of the monitoring.

Employers in Texas are required to inform employees of when and how they’re being monitored. Most employers choose to do this by placing conspicuous signs in areas where monitoring equipment is in use.

Can Employers in Other States Utilize Electronic Monitoring?

Electronic monitoring can be a gray area or a very complicated issue, depending on a state’s existing surveillance laws. Some types of phone monitoring may be in violation of wiretapping laws, especially if there is no clear and direct indication to both parties that their phone conversation is being monitored.

Some states have privacy laws that are so specific and strict that workplace electronic monitoring would be very difficult, if not outright impossible, in some instances. This doesn’t apply to things like premises security cameras or other measures your workplace enacts to protect your staff or property from threats.

It’s best to check with your lawyer before you begin using electronic monitoring tools in your workplace. Your legal team will be able to inform you of suitable electronic monitoring tools that can peacefully coexist with your state’s laws.

If you do choose to utilize electronic monitoring tools, it may be a good idea to post a general notice or otherwise inform your employees that electronic monitoring tools are in use. Even if state law doesn’t require you to post such a notice, it may come in handy if an employee ever allergies that they were monitored without consent and that their privacy was violated.

What States Have Laws That Conflict With Electronic Monitoring by Employers?

California, Florida, Louisiana, and South Carolina have laws that clearly define privacy. Electronic monitoring by employers could be deemed a direct violation of privacy laws. Employers in these states should tread carefully with any electronic monitoring initiatives and clear them with a lawyer to ascertain that they don’t violate the law.

California is the strictest state regarding electronic surveillance. It has several data privacy laws designed to protect consumers and may also extend to protect employees. California employers should never utilize anything that could be construed as a data monitoring tool without first consulting with their legal teams.

California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington have wiretapping laws that make most types of electronic communication surveillance illegal.

Can You Use Monitoring Tools for Employees or Offices in Europe or the UK?

The European Union and the United Kingdom technically allow electronic monitoring, but their requirements are much more strict than the requirements in the United States.

Employers are required to prove that they have a legal reason for utilizing electronic monitoring and that their reason outweighs the employee’s right to privacy. This is very hard to prove under UK and EU standards.

If employers meet the criteria, they’re also required to implement a data protection plan to safeguard all information they collect through monitoring. Data and privacy protection laws in the European Union are very strict. Employers are required to utilize the strongest security protocols to protect all employee data they collect, even if the information wouldn’t normally be considered sensitive.

Stay Compliant With Electronic Monitoring Laws

Electronic monitoring can be an immensely useful tool for a business. Monitoring tools can do the work of several employees and provide valuable data. If you’re able to utilize electronic monitoring in your workplace, it’s important to do so in accordance with state laws.

Mosey’s business compliance platform can help you review state compliance requirements that apply to your business. Let us keep track of the notices you’re required to post and any written agreements your employees need to receive. Mosey automates the process of compiling notices and notifying you of any legislation changes relevant to your business. Schedule a demo with Mosey to learn how we make compliance easy.

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