Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in HR Dive, in “Productivity Monitoring: Considerations for HR, from Compliance to Culture,” by Pamela DeLoatch.

Following is an excerpt:

Remote work isn’t new. Its road to popularity has been paved by workers seeking the flexibility, job satisfaction, and productivity it provides. An analysis by FlexJobs and Global Workplace Analytics found that in the last five years, remote jobs grew 44%, and in February 2020, 4.7 million U.S. workers operated remotely.

Despite the popularity remote work has among employees, some employers aren’t sold on the idea, worried that employees will slack off without supervision.

But the novel coronavirus pushed wary employers to accept the arrangement. For many companies, allowing employees to work from home was no longer just a nice perk; it was the only way to continue operations. According to a report from Willis Towers Watson, the amount of remote workers surged to 53%, after clocking in at 7% last year.

With remote employment now a necessity, employer concerns about working from home may feel even more urgent. After all, without being in the office, how can managers ensure employees are being productive? If managers can’t stroll by employees’ cubicles, how do they know they’re working and not refreshing their Twitter feeds? Or that they are keeping company information secure? Or that they aren’t misusing company devices?

A common solution: Employee monitoring

Companies may address employee productivity and security concerns by using a variety of monitoring technologies, said Adam Forman, labor and employment attorney at Epstein Becker Green. These include video, audio, screenshots and other technologies to measure productivity, he said. …

Legal ramifications? It’s complicated

Although monitoring is generally accepted in the company office, can an employer still monitor an employee at home? Yes and no, said Forman. “There is a patchwork of laws that regulate an employer’s ability to monitor the activities of its workers,” Forman said. In other words, it’s complicated.

Employees in the public sector have different protections than those in the private sector. Add to that a myriad of laws that include state regulations, the Electronic Communications Privacy Act of 1986 and the National Labor Relations Act. These statutes and others provide employers guidance, Forman said, but they also often provide conflicting exceptions.

Employers that want to monitor staff should create a written policy or procedure, Forman said. Similar to a social media policy or electronic technology policy, this policy would inform employees that they may be monitored and eliminates the expectation of total privacy, he added.

Monitoring in the age of personal devices

Employers can monitor employees using company equipment, but it gets a little stickier when employees want to use their own devices. “You may want to leverage technology to get around concerns,” Forman said.

For example, companies can require that employees install mobile device managers to access corporate documents. “[The device manager] essentially creates a sandbox within your device where all corporate information resides,” Forman said. If a phone is lost, the company can wipe the corporate data from the phone, leaving the personal information intact. Or, if employees leave the company, they can’t take the “crown jewels” of information with them, he added. …

Reducing the creepy factor

Employers may have a multitude of reasons to monitor employees’ actions carefully, but they should be aware of the downsides, multiple sources said. Employers don’t want to be viewed as overly intrusive, Forman said. This can happen when employees don’t know they’re being monitored, and employers install spyware to turn on laptop cameras, read emails or listen in on calls. In some cases, this can be done legally, but employers can still face ramifications. …

‘Can’ doesn’t always mean ‘should’ …

The first critical step for companies is to eliminate the expectation of privacy, Forman added. And, when monitoring, don’t go overboard, he said. “Use a scalpel, not a butcher knife.”

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