Is Surveillance in the Workplace Good Business?

Investigations.BLOGEmployers continually seek to reduce waste, improve performance, and achieve goals. Technology provides ever-increasing options to observe, monitor, and measure employees in the workplace. Technological capabilities and employers’ needs seem to go hand-in-hand: What could be more natural than gathering data through employee surveillance and using that information to improve operations?

Legally, private-sector employers have a great deal of freedom in surveilling their employees when they are “on the clock”: there are no federal guarantees of privacy in the workplace. (Public sector employers have different considerations under the Fourth Amendment.) Surveillance using cameras, GPS tracking, swipe cards, and computer keystrokes is widely accepted for improving workforce productivity. Emerging surveillance methods using increasingly sophisticated technology offer new opportunities to employers, including:

Big Data. Larger private-sector firms can collect data and “connect the dots” to identify patterns that are predictive of employees’ potential, performance, and behaviors.

Drones. For operations in remote areas, drones equipped with cameras hold much potential as a surveillance tool to monitor workers’ activities, enhance safety, and validate work quality.

Wearable Technology. “Fitbit”-type devices can gather data to measure employee performance and possibly health issues that impact wellness. Wearable cameras may collect useful video evidence of employee behaviors.

Biometric Scanning. Identifying employees by fingerprint or other biometrics is useful for timekeeping and location tracking. Future enhancements could test for the presence of substances that impact safety. Vehicle steering wheels and other company property could be implanted with sensors to detect substances in employees’ sweat, track eye movements, and identify other signs of impairment.

Is all this surveillance good business?

In many circumstances, yes, when used thoughtfully for distinct operational objectives and in recognition of an organization’s culture. Employees are most likely to accept monitoring to reduce theft and enhance safety. For organizations like banks, with a lot of cash handling, video monitoring is a given. Safety sensitive positions (e.g., crane operators) require employees be unimpaired by substance abuse. Appropriate surveillance measures taken to monitor such employees and enhance workplace safety are welcomed.

Alternatively, a culture that thrives on flexibility and freedom of thought and mobility may find their goals are not supported by invasive surveillance. Counterproductive surveillance may also take place in lower-skilled operations, even when low-tech methods are used. A Harvard study of Chinese factory workers found that when employees were under surveillance by managers, they UNDERperformed compared to workers shielded from managers’ watchful eyes. Closer to home, employers who scold employees “caught” using social media during work hours may find this backfires. When employees perceive their privacy is violated and they are under unnecessary scrutiny, they may feel insecure, vulnerable, resentful, and not focused on their work.

Research shows that if employers carefully select observation methods and explain in advance the benefits to employees (e.g., personal safety, enhanced skills, improved coaching) then there is a much higher degree of acceptance and success. Providing employees a say in the data collected and the methods used also has a positive impact and may even encourage them to become advocates for the use of technology. But if the message to employees is, “We don’t trust you,” there is a negative impact on morale and performance. Identify a “sweet spot” between allowing employees the occasional posting or funny kitty video and staying focused on work. Such diversions may provide needed mental relief in a stressful workday, fortifying employees for their next task.

What about employer surveillance of employees outside the workplace?

Social media tempts employers to monitor employees during off-hours. Drones could be used to gather evidence in investigations of FMLA abuse or workers’ compensation fraud, much as a human detective would. Employers must act cautiously and have legitimate reasons to monitor employees outside of work hours. Some states prohibit employers from disciplining employees for lawful off-duty conduct. The National Labor Relations Board has taken action against employers who limit employee free speech in social media channels. Technology is moving faster than the law, meaning there are more and more ways to surveil employees, but great uncertainty as to their legal use. Many issues will be resolved through the courts. Employers who adopt new uses of surveillance technology, beware: you may become a test case!

The best practice is for employers to lower the expectation of privacy by drafting policies that make employees aware of surveillance activities in the workplace.

If your organization is contemplating surveillance technology in a new and innovative way, please contact MSEC to discuss the legal implications and organizational impact of such actions.