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Surveillance of Employees Becoming Almost Ubiquitous Before Law Can Catch Up

As quoted in a 2003 article by Robin L. Wakefield of the Information Systems Audit and Control Association, “The American Management Association‘s (AMA) 2001 Workplace Monitoring and Surveillance Report indicates that 82 percent of responding managers use some type of electronic monitoring in the workplace…monitoring Internet connections remains the predominant surveillance activity (63 percent), followed by storage and review of e-mail (47 percent) or computer files (36 percent), video recording job performance (15 percent), and the storage and review of voice-mail messages (8 percent). The top three reasons for employee monitoring are legal liability (68 percent), security concerns (60 percent) and legal compliance (50 percent).” Since those data were gathered, all evidence points to a steady and massive increase in the use of various forms of desktop, email, internet, audio and video surveillance by employers.

Many of the reasons that employers give for these practices are difficult to deny. For example, employers are vicariously liable for many actions by their employees and therefore have plenty of reason to monitor and control actions that could end up affecting the company’s bottom line–theft, harassment or other illegal workplace behavior, disclosure of company information, etc. Surveillance can be profitable in other ways: gathering detailed data about employees’ behavior allows companies to take steps to control processes and increase efficiency. Some of the stated reasons for employee surveillance seem downright beneficent. The CEO of “Sociometric Solutions,” a company that provides companies with equipment for monitoring their employees’ communication behavior at work, points to the example of Bank of America, which learned through monitoring that they could increase productivity 10% by giving employees a shared 15-minute coffee break each day.

Of course, the trend toward increasing surveillance of workers has led to concerns about privacy and a fierce debate about how much surveillance should be allowed by law. The statutory and case law in this area are yet to take shape; in practical terms, there are presently few legal restrictions on what companies can do when it comes to monitoring employees.

Where they exist, legal restrictions on employers’ monitoring of employees are mostly found in state law. For example, in 2006 New York added Article 7, Section 203-C to the state’s labor law, making it illegal for any employer to make a video recording of employees “in a restroom, locker room, or room designated by an employer for employees to change their clothes…” New York State law also prohibits eavesdropping, and some lawyers suggest that this law amounts to a prohibition on surveillance by employers, but this law has found few applications in these kinds of cases. So companies in New York have been mostly free to monitor their employees, with only a few specific restrictions.

But now there is legislation pending in the State Congress of New York that would require employers to notify employees in writing “upon hiring” that they engage in electronic monitoring of employee communications, and to post a notice with the same information in a conspicuous location in the workplace. This law is far more on-point than any that preceded, but it does little more than codify the message that Human Resources professionals and corporate attorneys have been sending to companies for many years: the key to staying out of trouble if your company monitors its employees’ communications at work is to notify those employees.

Under the new law, if it passes, companies will face laughably small penalties for monitoring without notification: five hundred dollars for the first violation, one thousand dollars for the second, and three thousand dollars for each subsequent violation. The law would not empower employees to seek damages for violations. But it’s a start.

If you are an employee and you believe your rights under the New York Labor Law have been violated, please contact The Harman Firm, LLP.

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