Legal Aspects of Using Employee Monitoring Software

Today we’ll ponder the question that a lot of employers have thought of once or twice – is it even legal to keep up with your employees by monitoring them without them knowing using employee monitoring software. The answer isn’t as simple as it could’ve seemed.

Everything depends on where you live and, therefore, work.

For example, in USA employers have the right to monitor the employees’ use of computers. According to ECPA (the Electronic Communications Privacy Act of 1986), computer that’s provided by the employer is their own property; therefore they can do whatever they want with it. It’s also worth mentioning that there is no federal law in the States that requires employers to notify their personnel that they’re being monitored.

Why would top management think it’s necessary to monitor what their employees are busy with? The answer is fairly simple. Management wants to make sure the employees aren’t wasting the resources of the company. Managers don’t think of it as spying; for them it’s the means to increase productivity in their team and prevent theft.

International employee monitoring legal debate

It is incredibly important to draw a clear line between employees’ and employers’ rights. It is absolutely imperative to understand what employers have the right to record. Everybody that’s involved – employers, employees and even providers of employee monitoring software – must acknowledge boundaries.

Most companies monitor the usage of internet, phone, and work email of their employees. The most vigilant are the employers that work in the financial sector.

But we should keep in mind that the location where somebody is being monitored matters. It’s legal to keep tabs on what your employees are doing all day. What’s illegal is placing surveillance tools in areas that require privacy. We’re talking about dining halls, bathrooms or toilets – places where people may be talking about their personal issues. It’s important to remember that if you invade spaces like these, you could get sued and penalized.

USA and protection of employees privacy

We’ve already mentioned the ECPA. That act, together with common law about protections against invasion of privacy, has restricted workplace monitoring to some extent.

For example, the ECPA prohibits intentional interception of oral, wire and electronic communication. There are, however, some exceptions that apply to this prohibition.

One of those exceptions is the ‘Business Motive Exception’. It permits employers monitoring their employees in the workplace through oral and electronic communications – as long as it shows that it was done only for legitimate business reasons.

So summing it up, there is no federal law in USA that would require managers to notify their employees on the fact that they’re being monitored.

Employee privacy in European Union

EU is a whole different story. European Court of Human Rights had decided that employers must provide notice to employees prior to monitoring their online communications, which, you have to agree, is a polar opposite of US situation.

Not only are employers demanded to inform their staff when they decide to use monitoring systems on them, but also things like emails and keystrokes can only be tracked when a documented agreement exists.

Moreover, there are two general directives on personal data protection in the EU. 
The first one (Directive 97/66/EC of 15 December 1997) protects individuals regarding the processing of personal data and the free movement of such data.

The second one (Directive 2002/58/EC of 12 July 2002) refers to the processing of personal data and the protection of privacy in the electronic communications sector.

Emoloyee Monitoring in Australia

Let’s have a look at some other countries. For example, only a few States in Australia have workplace surveillance laws. The Workplace Surveillance Act of 2005 (New South Wales) applies only to NSW, with no other states regulating surveillance specifically within a work context. Its purpose is simple – to regulate the legal use of camera, audio, computer surveillance and geographical tracking. So an employer can monitor an employee’s computer usage only if the employees are notified that their computer activity is being monitored.

Employee Privacy in India

What about India? According to Indian Employment and Labour Law, the employer has the right to monitor employee activities, company emails, SIM cards, headsets and computers. The basis for the aforementioned monitoring is safeguarding company’s confidential and proprietary information. If the monitoring goes beyond company premises, or if it’s found to be a violation of employees’ right to privacy, the organization might have to justify their actions.

Monitoring Employees in United Arab Emirates

UAE. The law in the United Arab Emirates, similar to India, allows employers to monitor company’s property, including: computers, phones, other electronic devices, email content, keystrokes, etc. However, employees must need to give prior consent to such monitoring, since they have a right to personal privacy. So if the employees don’t agree with processing of personal and sensitive data, then the employer can’t monitor them.

Emoloyee Monitoring in Canada

Another country that has clear laws on employee monitoring is Canada. Canadian employers should tell workers in advance what personal data they’re planning to collect, use and disclose. All workers should be notified about policies regarding web, email and telephone use. 

Privacy of Employees in South Africa (RSA)

Another country that has strict employee monitoring rules is South Africa (RSA). The Regulation of Interception of Communications and Provision of Communication-Related Information Act in the country regulates the interception and monitoring of employee communication in the workplace.
Section 2 of RICA contains prohibition against intentional interception of any communication. So the employer can’t monitor what their employees are doing unless the employee consented to the interception, or the interception was done for a general business purpose.

Getting employee consent before interceptions communication is not only the right thing to do to stay out of jail, but it will also assist in managing the climate in the company.

Employee Monitoring in Philippines

Unlike other countries, the Philippines has no law that addresses Internet privacy of employees in the workplace. 

In order to have lawful access to electronic data, the possessor must consent to the access or use of that information. Moreover, the access to the aforementioned electronic data must only be for the purpose for which its access was authorized.

Ultimately, a balance should be achieved between thinking about business interests and weighing them against the employees’ anticipation of privacy, while at the same time taking into consideration regulatory limitations that, like we’ve shown you, vary country to country.

At the end of the day, both legal and ethical aspects of monitoring workers are crucially important.

What’s more, it is incredibly important to utilize right monitoring software.

The last thing we want to focus your attention on is the tenacious need for managers to increase productivity of their employee performance.

That being said, using employee monitoring software has been proven to be a very effective method. But only when a healthy balance between business interests and privacy of employees is maintained – which you should always keep in mind.

Kickidler Employee Monitoring Software

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