12 Most asked questions on Indian employee monitoring laws

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The local legislature allows employee monitoring to a certain extent. For example, section 69 of the Information Technology Act, 2000, and section 5 of the Telegraph Act, 1885, allows the “interception, monitoring or decryption of any information transmitted, received, or stored on a company device. This is especially true if there is a legitimate and reasonable business intent, and the monitoring does not intrude into the employee’s personal space and privacy.

1. Is employee monitoring legal in India?

Yes. Employment and labor laws in India permits the employer to monitor tasks the employee performs on equipment provided by the company. That said, monitoring must be implemented for business interests or to help employees develop self-discipline and improve productivity. Employees need to be aware of the surveillance, and if the monitoring goes beyond company grounds, the company must be able to justify it.

2. Is it legal to monitor the company’s computers?

Yes. Indian Employment and Labour Laws permit the employer to monitor all activities carried out on company computers. Section 69B allows the monitoring and controlling of traffic data or information generated, transmitted, received, or stored in any computer resource. This includes but is not limited to storing documents/files, downloads, internet usage, and active/idle time based on the monitoring to improve employee productivity and safeguard company information.

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3. Is it legal to monitor screen contents and keystrokes?

Yes. In India, it is legal to monitor screen contents and every keystroke on an employer-issued computer. A good rule of thumb is to remember that everything an employee does on their work computer can be accessed by their employer, mainly if there is a clear and documented workplace policy in place.

4. Is it legal to monitor employee internet and social media activities?

Yes. An employer has the right to ensure employees are using the Internet for work-related purposes during paid hours. Section 69A of the Indian constitution allows employers to monitor internet activities such as the websites visited, restriction of certain websites where the content is objectionable, and the amount of time spent online during working hours.
In regards to social media, employers are allowed to monitor and restrict employees’ social media use while at work, especially on company devices. Employers are required to set policies in place that state conditions relating to social media use during working hours.

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5. Is it legal to monitor email content?

Yes. According to the Indian Employment and Labour Law, the employer has the right to monitor company emails. It is, therefore, important that companies inform employees about monitoring in advance.

6. Is it legal to monitor or record phone conversations?

Yes. The Indian Telegraph Act, 1883, which regulates wired and wireless telegraphy, telephones, radio communications, and digital data communications, allows employers to establish, maintain, and all forms of wired and wireless connections. It also authorizes government law enforcement agencies to monitor/intercept communications and tap phone lines under conditions defined within the Indian Constitution. Furthermore, section 5 (2) of the Indian Telegraph Act 1885 – with rule 419 (A) of Indian Telegraph (Amendment) Rules 2007 obliges telecommunications service providers to maintain extreme secrecy in matters concerning lawful interception.

7. Is it legal to use video monitoring systems in the workplace?

Yes. In India, employers are generally allowed to deploy video monitoring systems in certain areas of the workplace, such as loading areas, entry and exit areas, parking lots, production areas, cash counters, and server rooms. Companies must comply with local laws on all surveillance systems. The law prohibits the use of video monitoring systems in restrooms or locker rooms. Also, audio recording or eavesdropping is considered illegal. To record sound, the party or parties being recorded must give their consent.

8. Is it legal to monitor private messages and email content?

Yes. Employers have the right to keep a close eye on work equipment, including incoming or outgoing private emails, in the event of productivity checks and threat identification. As long as the employer owns the device or the network, they are permitted to check whether employees are accessing their private emails on-the-job. A clear policy that outlines the proper use of work equipment in the workplace should be provided, and employees must be aware of the policy. Employers must inform the employee in advance before monitoring private emails or messages.

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9. Is it legal to monitor employees’ personal devices?

Yes. In cases where an employee carries out work activities on a personal device, employers can monitor such activities during working hours. Nevertheless, the consent of the parties concerned should be obtained. Also, employers should spell out the extent of monitoring on personal devices. The Information Technology Act prohibits any person from accessing, copying, or downloading data without the owner’s permission.

10. Is it legal to monitor employees’ personal computers?

Yes. As mentioned above, an employer may collect data on a computer belonging to an employee if consent has been obtained or a well-defined BYOD policy that permits the monitoring of an employee’s equipment within company premises is established.

11. Is it required to inform employees of the monitoring?

Yes. Notice is an essential factor. It is necessary for employers to adequately inform their employees about the nature and extent of the monitoring in advance. Employees must be provided with adequate safeguards against employer monitoring and consequences in the event of an infringement or unacceptable behavior. Also, It is important to have written consent from employees.

12. Employee monitoring policy – Mandatory or not?

Yes. Policies and codes of conduct are mandatory components for every organization in India. It is recommended that an employer must include employee monitoring requirements either in the privacy policy/ employee handbook or in the employment agreements. The policy should cover:

  • What information is being collected?
  • The purpose for which the information is being collected.
  • The duration of the monitoring and how long it will be retained.
  • Any third party involvement with SDPI must be documented.
  • The right of an employee to edit/ modify his personal data, or even withdraw consent where he does not wish to allow access of his sensitive data to a third party.
  • Reasonable security measures that will be taken to handle SDPI.

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Are there laws in India that protect employee workplace privacy?

Yes. Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 requires every corporate entity to adopt and maintain reasonable security practices to protect employees’ sensitive personal data in their possession. This includes passwords, medical records, financial records, physical, physiological and mental health conditions, sexual orientation, biometric information, etc. An employer who fails to follow these security practices and discloses information, either knowingly, deliberately or without consent, will be penalized under section 72A of the (Indian) Information Technology Act, 2000 and the individual concerned is entitled to compensation according to section 43A of IT Amendment Act, 2008.

Is there professional lawyers’ advice on monitoring?

Yes. Employers are allowed to monitor the use of company equipment by employees at the workplace, but they must first be familiar with federal and state laws on monitoring. However, lawyers recommend that clear policies are established to show which metrics will be monitored, why, and how the employee monitoring software will function. Employee consent is also required. Also, section 43A of the IT Act governing data privacy and protection states that an organization must adopt and enforce appropriate security practices when handling sensitive personal data or information (SDPI).

What is the bottom line?

Currently, employee monitoring is still a grey area in India, since there are no comprehensive surveillance laws. That said, adequate information should be given to employees, such as monitoring policies and handbooks. There is also a need to be specific on the degree of monitoring and getting consent. These measures allow employees to understand the process better and establish where they can or can not expect privacy.

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Disclaimer
The information provided in this article is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

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