Following the pandemic-driven increase in remote work, California employers have begun implementing a variety of technology tools to monitor the activities of their employees. From monitors to keyboards and other productivity programs on phones and laptops and other monitoring tools, there are numerous options that allow you to monitor the activities and productivity of employees even if they are working from home.
However, the recent passage in Congress of the Electronic Communications Privacy Act of 1986 (EPCA) will make the use of monitoring and tracking technologies something that must be managed more carefully.
Although this Law prohibits employers from intentionally intercepting and monitoring the work communications of their employees, there are certain exceptions that allow the legal use of these tools:
First, there is a business purpose exception, which allows employers to intercept work communications between their employees as long as the company can demonstrate that there is a legitimate business purpose.
The second exception is when the employer receives the explicit consent of the employee to allow supervision of their work communications, whether in person or electronically.
Even if an employer has reasons to justify legal use of monitoring tools, it is important to be aware that this law reaffirms the limits under which an employer can use this type of technology .
Under the new conditions created by this law, no employer or company is allowed to monitor or track their employees during non-working hours. Similarly, they must ensure that these tools continue to provide information during non-business hours.
Given recent circumstances, where long-term hybrid work and remote work arrangements have become increasingly common and popular, California employers must re-evaluate any practice that involves controlling and monitoring the virtual activities of their employees. Various ways to ensure legal use of monitoring tools include monitoring and tracking any revisions to the law, regular and early notice, and, if necessary, obtaining written consent from employees.