Is It Legal To Monitor Employees’ Personal Devices?

Many of today’s workplaces have moved towards working remotely—whether from home or elsewhere. Employers need alternative approaches to ensure their employees are making productive use of their time—usually by monitoring. But what if the employee is using a personal laptop?

Monitoring employees’ personal devices is legal in the US if the employee gives consent. The consent form should give a detailed outline of what the employer will monitor and how. In some states, no consent is legally required to monitor devices that are strictly for professional use.

Read on to find out more about how you can monitor your employees without breaking any laws.

How To Legally Monitor Employees’ Personal Devices

In the United States, monitoring other people’s devices is generally illegal under federal law, but there are some exceptions. If you’re an employer thinking of monitoring your employees, you need to be familiar with the Electronic Communications Privacy Act (ECPA) and other relevant laws.

You’ve probably noticed that it is more financially feasible for your business to allow your employees to work from home. To go a step further, you might have asked them to use their own laptops whenever possible. But the only way you can be assured that they are actually being productive and working the correct number of hours is via monitoring.

The easiest way to do that is via remote desktop monitoring software such as Wolfeye Remote Screen. But before getting into the details of how to use such software, it’s a good idea to cover all the legal aspects of monitoring employees’ personal devices.

The ECPA allows you to legally monitor your employees’ devices if:

You provided the device, or
They provided consent.

As such, monitoring your employee’s personal devices requires them to legally give you consent to do so. That simply means providing them with a consent form and asking them to download the software of your choice.

To ensure you don’t run into any legal problems, be sure to state clearly what the software will be monitoring before you ask your employees to download it.

Personal Devices vs. Corporate Devices

As I mentioned earlier, if you are providing your employees with a device to work with (that includes laptops, phones, tablets, etc.), there is no need to ask for consent—you have the legal right to monitor the devices you provide. Most employers still inform their employees that they are being monitored.

Consent forms are a requirement when monitoring personal devices because you can assume that the employee won’t be limiting their use of the device to work-related activities. Even if your employees use the device solely for work, you cannot consider it a corporate device unless your business purchased the device.

While there are some benefits to employees using personal devices in place of corporate ones, there are also quite a few risks.

The only circumstances personal devices can be monitored without consent are:

By law enforcement (when applicable)
When a parent is monitoring their child who is a legal minor (under the age of 18), as the child is not old enough to give consent

In fact, many parents monitor their children’s devices freely without any legal repercussions.

What To Include in an Employee Monitoring Consent Form

We’ve established that in order to monitor your employees’ personal devices, consent is a non-negotiable requirement. If that consent is improperly obtained, or if the specifics of that consent aren’t in order, you could find yourself facing a very serious lawsuit.

You should understand that consent is a legally defined term, and there are times when the way consent is obtained is very specific. For example, the following are some of the particular rules given regarding consent to monitoring in Europe (where the General Data Protection Regulation (GDPR) applies):

The consent must be explicitly stated and given without coercion.
It is not compulsory. That is, any employee can legally refuse to give consent to being monitored without fear of any retribution.
The employee should be free to revoke their consent at any point.

It’s best to communicate all of this information in the consent form, and it’s best not to pressure employees towards giving it. Be prepared if a portion of your workforce refuses to give consent, and remember that you won’t have a legal right to punish them for it.

Also, include a detailed outline of all the devices you intend to monitor, the times you will be monitoring, and exactly what you will be monitoring. This includes information as to whether you’ll be recording keystrokes, microphone recordings, or anything else.

It’s advisable that all potential employees are informed that you will require their consent to monitor them, even before they are hired. Keeping a healthy work environment will encourage your employees (current or potential) to consent to be monitored, especially if you ensure that you will protect their privacy.

Benefits of Employee Monitoring

You might be wondering if it’s worth the time and trouble to monitor your employee’s personal or corporate devices. Especially as more people are working remotely nowadays, there are many advantages you stand to gain as an employer. Here are a few of the most common benefits that employers claim:

Employee monitoring increases the productivity and accountability of their employees.
It’s easier to manage projects by tracking time spent on the project by different departments. This includes using the tracked time to charge clients billable hours.
It provides protection against data breaches, phishing scams, and malware.
It provides a legal route to protecting sensitive client information.

Final Thoughts

The bottom line is that monitoring employees on their personal or corporate devices is not easy, but it’s necessary to ensure you are getting the performance you’re paying for. If you go through the correct legal channels and create a safe workplace environment, you’ll likely be able to get your employees’ consent to monitor them legally.

Nowadays, electronically monitoring employees is just as common as CCTV cameras in large-scale corporate grocery stores. There’s no reason you should hesitate to protect your business and hold your employees accountable for the hours they claim to put in when working remotely.

Sources

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