Is it legal to monitor employees without their knowledge?

Is it legal to monitor employees without their knowledge? Quite a controversial question. The legislation worldwide is divided 50/50 on this matter. We assume that the employer plays a major role in making the final decision. Monitoring employees means much more than just controlling your team members' productivity. It’s about building a background for further business growth. Whether it will be based on transparency and loyalty or slowly breaking down under the pressure of invasive control, it’s up to you.

We're WorkTime, the only non-invasive employee monitoring solution around. We've put together a quick article to help both managers and employees understand the legal side of things when it comes to monitoring.

Is it legal? An overview by country

1. USA: notifying employees depends on the state

Under US federal laws, employer rights include monitoring their employees as they perform their duties. However, Lewis Maltby, President of the National Workrights Institute, confirms that the location where employees are being monitored matters.

US federal law allows employers to monitor their employees as they perform their duties.

One of the most frequent forum questions related to privacy laws in the workplace is “Can my employer track me without telling me?” According to federal legislation, the employer doesn't need to inform the employees about monitoring. Only in four states, including Connecticut, Delaware, Texas, and New York, the employer is required to notify the staff about implementing monitoring software.

Employee monitoring laws in the US permit employers to monitor workers without their consent in the majority of states.

2. UK: announcement is required (with some exceptions)

Is it legal to monitor employees without their knowledge? UK legislation states that the employer must announce implementing monitoring software in most cases. Still, several exceptions allow the monitoring of employees without their knowledge:

• Suspicion of criminal activity;
• Covert monitoring for specific investigation aims.

Monitoring without informing the staff must be stopped right after the issue is investigated.

3. European Union: informed monitoring only

Is it legal to monitor employees without their knowledge in the EU? According to EU employee monitoring laws, employers are expected to inform their staff about the use of monitoring systems. Emails, keystrokes, and screen content can only be tracked when a documented agreement has been reached (monitoring policies and handbooks).

The European Court of Human Rights decided that employers must notify employees regarding any monitoring activity they intend to undertake.

4. Australia: informing is a must

Is it legal to monitor employees without their knowledge in Australia? Australian employee monitoring laws require employers to inform the workers that they are monitored. Furthermore, the authority should discuss the time frame, including the exact time when the workplace surveillance will start and the nature of the monitoring. In Australia, only a few states have workplace privacy laws. For example, The Workplace Monitoring Act of 2005 (NSW) s10, s12 stipulates that employers may monitor their employees’ computer use only if a monitoring policy is available and the employees are notified that their computer activities are being monitored.

5. South Africa: notifying is not obligatory

Is it legal to monitor employees without their knowledge? In most cases, South African legislation permits monitoring staff without notifying them. But if the employer uses invasive monitoring software, then it is obligatory to inform employees. These cases involve: 1. Monitoring personal email; 2. Recording any content or Internet usage on personal devices; 3. Keylogging; 4. Phone call interception.

Implementing non-invasive software allows employees not to announce monitoring in South Africa.

WorkTime employee monitoring and productivity tracking will be an effective solution to maintain a healthy balance between business interests and the employees' privacy. Monitor your employees and get reports in numbers, without any invasive content capturing.

Privacy is the top concern for employees

When employees work from home, are on break, or believe there is no monitoring in place, their behavior changes, as do their privacy expectations. And this is what troubles your employees the most - privacy. Here are the top 5 questions employees have about employee monitoring:

1. Can my employer track me without telling me?

This question is in the top spot. Generally, monitoring employees without their knowledge is legal in several countries. We delve into this issue further in this article, so you can learn more about legislative approaches toward employer rights in the US, EU, UK, South Africa, and Australia.

2. Are cameras allowed in employee break rooms?

If an employer is determined to use employee monitoring software to keep tabs on what they do during the working day, this is legal. However, it is illegal to mount surveillance tools in areas exclusively for privacy, such as cafeterias, locker rooms, or bathrooms, where people can talk about their personal issues. Employers who violate these regulations could be sued and penalized.

3. Can employers listen to employee conversations?

It depends on specific circumstances and the legislation of a certain country.

Generally, monitoring private communication or phone conversations outside the workplace is prohibited. But if we talk about work-related areas, it depends on the employee monitoring laws by state. In the US, the ECPA protects employees' workplace privacy, prohibiting the premeditated interception of oral, wire, and electronic communication by employees. Several exceptions also apply, although exceptions apply to employers:

• “Business Motive Exception,” which permits employers to monitor employees at work through oral and electronic communications if it has been done for legitimate business reasons.
• “Approval Exception,” which allows employers to monitor employees' communications/activities via monitoring apps and other means.

In the UK, the employer is allowed to monitor and record phone calls if the employees communicate via the company’s devices for such purposes:

• Business-related issues;
• Detection and prevention of criminal activity;
• Security purposes;
• Identifying the unauthorized use of the company’s devices;
• Ensuring the workers adhere to the company’s standards.

Also, employee privacy rights include notification about interception of telecommunications systems. The same relates to Australian employers: they must get consent or inform the staff about phone call monitoring. In the EU, employers must also have reasonable motives to monitor employees’ phone conversations. Besides, they are obliged to get permission from the work council. In South Africa, legal employee monitoring is allowed, including recording phone conversations, if it is proven before the law. Also, there is a need to get the employee’s consent before monitoring.

4. Can an employer watch you on camera from home?

If you work remotely for a certain reason, the employer has the same right to monitor your activity and gather data from your keyboard and webcam during work hours.

5. Can your employer spy on you at home?

No. The employer has no right to monitor workers through a web camera outside work hours. Besides, it will be regarded as a violation of employees’ privacy and an invasion of personal space. But when it comes to working from home via company’s devices, monitoring is not regarded as spying.

Legal or not, put your employees first

“Take care of the people, the products, and the profits - that order.” Ben Horowitz, American businessman, investor, the author of “The Hard Thing About Hard Things”

“Putting people first is going to lead to outstanding customer satisfaction and financial performance." Michael C. Bush, CEO, Great Place To Work

“Clients do not come first. Employees come first. If you take care of your employees, they will take care of the clients.” Richard Branson, CEO and founder of Virgin Group

Of course, the law is often on the side of employers, giving them the green light to monitor their employees without their knowledge for the sake of their company’s purposes. But if you are planning to build a solid background for your business growth, then a choice in favor of transparent relations with your employees is a winning long-run tactic.

​​We are WorkTime, a software company with 20+ years of expertise. Our non-invasive employee monitoring and productivity tracking help to create a respectful work environment.

Go non-invasive - it's legal, guaranteed

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What’s the final verdict?

Is it legal to track employees without their knowledge? There should be a healthy balance between the business interests and employees’ privacy. Maintaining a respectful and loyal work environment is much more effective than invasive monitoring methods.

Invasive, disrespectful tools are out-of-date. Go green with WorkTime and build a progressive, loyal, and effective work environment!

With WorkTime, employees’ questions like “How to tell if employer is monitoring computer?” won’t be a thorny issue for you anymore. You will successfully build transparent employer-employee relationships and stay confident in your team’s productivity. Try 14 days for free and boost your team productivity with non-invasive employee monitoring!

Disclaimer

This article provides general information only, not to be used as legal advice. To receive professional legal advice, please consult your lawyer.