It is no secret that the COVID-19 pandemic has led to the evolution and acceptance of hybrid workplaces. According to a Gartner, Inc. survey conducted in April 2020, nearly 50% of companies reported more than 80% of their employees were working remotely. The study also noted that 41% of employees are likely to keep working remotely post-pandemic. Another survey by the Boston Consulting Group found that 89% of employees would work fully or partially remote if given a choice. 

Online platforms such as Microsoft Teams and Zoom make it easy for employers to communicate with their in-office and remote workers. But how can employers manage their remote workforce to ensure productivity? 

A recent Los Angeles Times article reports about 60% of organizations utilize workforce tracking systems to monitor activity and how much time is being spent idle. These tracking systems – also known as surveillance software – administrators manage and oversee workers’ computers from a central location. The rapid development of workforce tracking software has come to include tools to monitor emails, web browsing and can utilize video surveillance. The same Times article indicated that employee turnover at these organizations is nearly twice as high compared to those that do not use employee monitoring. In fact, 1 in 4 workers say they would take a 25% pay cut to avoid being surveilled.

As employers consider the level of monitoring – and how and what to monitor – there are some important questions to address for effective employee tracking. 

How does monitoring align with company culture? 

The pandemic has arguably given workers a renewed sense of values and time to rethink their careers. As a result, many workers are looking for improved work conditions, benefits, and, most importantly, job satisfaction. Employees who made the shift to working from home have learned that they could meet their job obligations, while avoiding commutes and other headaches. Companies have also recognized the benefit of a hybrid work environment even as they evaluate how to track employee productivity and engagement. A company’s monitoring policy should take successes in the hybrid work environment into consideration as they develop the monitoring policy. A clash between monitoring and successful employee behaviors will result in a diminished ability to attract and retain top talent.

What’s lawful in your state?

Employee tracking software is software that allows employers to supervise workers’ real-time locations and activities, with the goal of eliminating distractions and maintaining productivity. The practice is broadly legal in the U.S. The federal Electronic Communications Privacy Act of 1986 gives employers the right to track employees’ written and verbal communications on workplace devices in certain circumstances. But that doesn’t mean the issue is completely black and white. Companies that plan to use employee monitoring should consider the legal and ethical ramifications in order to maximize the benefits without invading employees’ privacy. In addition to the federal law, different states also have different laws that govern employee monitoring as well. 

How should you communicate the policy?

Regardless of the employer’s motivation, transparency is a good policy when it comes to employee monitoring. In fact, 77% of employed Americans in one survey said they “would be less concerned with their employer monitoring their digital activity on personal or work-issued devices they use to conduct work, as long as they are transparent about it and let them know up front.” Without transparency, workers who later learn they are being monitored could lose trust in the organization, or possibly find grounds for legal action depending on state laws.

What is your goal in monitoring? 

Under the federal communications law, most employee tracking is considered legal — everything from emails to social media. As more workers and companies rely on hybrid workplaces, there is a growing call for a new “bill of rights” governing artificial intelligence tools. In an editorial for Wired, Eric Lander, director of the White House Office of Science & Technology Policy, and Alondra Nelson, OSTP deputy director for science and society, argues the U.S. should “clarify the rights and freedoms we expect data-driven technologies to respect,” such as “freedom from pervasive or discriminatory surveillance and monitoring in your home, community and workplace.” 

Seek outside counsel as a part of your evaluation, implementation and communication.

Employee monitoring is rapidly evolving as are the laws in support of employees and employers. In this transition period, you would benefit from insight and guidance from outside counsel to ensure you are achieving your goals of a highly productive workforce while not being viewed as overly cumbersome or intrusive.