Rapid advances in technology have enabled employers to track employees with greater granularity and detail than ever before. At Amazon, roughly one in ten firings is due to a “low productivity score” as determined by a computer program. This algorithm tracks an employee’s “time off task,” or the amount of time a worker spends away from their responsibilities. By analyzing data gathered by workplace terminals, surveillance cameras and apps employees are forced to download on orientation day, Amazon’s algorithm can paint a picture of a worker’s entire day: every bathroom visit, every conversation break, every time a worker does anything other than the assigned task. Is this kind of invasive surveillance of employees legal? And can a business struggling with shrinking productivity numbers turn its fortunes around by copying the methods of this tech behemoth?

Privacy in the Workplace

There are not many U.S. laws that concern privacy in the workplace, especially at the federal level. While laws such as the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA) protect a worker’s individual data concerning mental or physical health, there is no federal law that specifically prohibits employers from tracking employees throughout the workday. Some states like California and Maine have attempted to fill the vacuum created by the lack of federal legislation, but even these efforts are mainly focused on consumer privacy, not employee privacy. Ultimately, employee privacy is not well protected by federal or state legislation, meaning the list of things an employer may not do is rather short.

The small number of existing laws dealing with privacy in the workplace mostly pertain to communication. Employers may track anything that happens on business-owned devices. This includes the webpages an employee visits, the number of keystrokes an employee makes and any communication sent via an app, even if the contents of the message are not business-related. Additionally, any device that uses a company’s Wi-Fi can be searched without notice. The critical exception to this sweeping authority is personal phone calls. A business is allowed to record and monitor phone calls made on the premises unless the call is personal and not business-related. As soon as it is clear that the phone call does not pertain to the company, the business must stop monitoring and recording the call. 

Similarly, businesses may place security cameras throughout the workplace. There are few restrictions on where video surveillance is allowed. Only places where employees have a reasonable expectation of privacy such as the bathroom or a break room are off limits. Parking lots, lobbies and personal offices are all fair game. The main restriction on video surveillance is audio recording. While cameras may be placed practically anywhere, they may not be used to record audio as this would violate federal wiretap law. Finally, the National Labor Relations Board (NLRB) has ruled that businesses may not use video surveillance to monitor union activities and meetings.

Apart from the restrictions on personal calls and audio recordings, businesses have wide discretion to monitor and track employees. Amazon is piloting a program where workers wear a bracelet that tracks the employee through the warehouse and monitors the number of boxes that a worker has moved throughout the workday. Currently the program is volunteer only but, given that Amazon already forces employees to download a location tracking app, it is likely only a matter of time before this new bracelet technology is required as well.

Many white-collar workers already wear a device that tracks them throughout the workplace, and they may not even know it. Utilizing the access keycard many workers carry on their person, in conjunction with video surveillance cameras, third party security companies like Kastle Systems can monitor the exact location of every worker throughout the workday. These third-party security firms claim that this granular level of data collection is necessary for contact tracing during the COVID-19 pandemic. However, it is not clear if this practice will be phased out when the pandemic ends, and many companies are provided the data with no restrictions on how they or third parties may use it. While the intent of the data collection may be contact tracing, managers may choose to use the tracking data to target specific under-performing employees. Opting out of this tracking is often impossible, as the keycards are the only way to scan in and out of different areas of the building.

COVID Has Opened a Door That May Never Be Shut Again

The COVID-19 pandemic has opened the door to an unprecedented surge in employee tracking. An entire industry of Android and iOS apps sprung up overnight, offering employers the ability to know such information as whether two coworkers spent an unusual amount of time together in close proximity. While some states like California do require that the employee be notified that this tracking is happening, it is still legal in those states to be fired for refusing to comply with the tracking system. While these apps were designed to monitor and maintain the six-foot social distancing guidelines, they will likely stick around post-COVID. Many workers will forget to delete the app, and employers will hesitate to give up this newfound ability to monitor the whereabouts of their workers. The fact that the U.S. lacks a comprehensive workplace privacy framework means that once an employer starts tracking a worker’s location, there is almost no incentive to stop. The only real pushback a company will receive is from the employees or a union.

Employee Tracking Can Boost Productivity, But Comes at a Cost

Although Amazon has been aggressive about increasing productivity at all costs, some of its measures have inspired serious pushback from workers and labor activists. This past year Amazon’s overreach inspired a serious union drive at a warehouse in Alabama. Investigative journalists have interviewed hundreds of current and former workers and discovered that employees often felt deeply uncomfortable with the amount of surveillance at work. Employees are often aware of how they are being monitored and respond negatively to working in a surveillance state. Employees who have serious misgivings about invasive tracking may quit, leading to higher turnover rates and the associated costs of hiring replacements.

To avoid these potential pitfalls, a company must weigh the interest in tracking productivity against the workers’ privacy concerns. Physically tracking workers throughout the day is legal and can result in higher productivity numbers. Push too far, however, and the costs of maintaining such a workplace will certainly outweigh the benefits.

As part of Lutzker & Lutzker’s ongoing analysis of state and federal privacy legislation, we will continue to provide updates on the trends in workplace privacy and are available to provide advice on the unique legal challenges and opportunities of surveillance technology.