Is it legal to monitor employees without their knowledge? - WorkTime

April 29, 2019

5 min read

Is it legal to monitor employees without their knowledge?

In most workplaces, It is not unusual for managers, and business owners to implement monitoring software to see if employees heedlessly misuse companies’ resources. In other words, it wouldn't be fair to generalize employee monitoring as spying. Rather, it is an effort to increase the productivity and safety of employees while preventing theft.

For managers and business owners, monitoring at the workplace is an effort to increase employees’ productivity and safety while preventing theft.

How about global employee monitoring legal considerations?

Double standards or not, it is imperative to draw a clear line between what employees can or cannot do and what employers should and should not record. Both parties, including employee monitoring software providers, must recognize monitoring boundaries, employee rights, and legislation in such practices depending on their jurisdiction. According to a study carried out by the American Management Association, 80% of the major companies monitor their employees’ internet usage, phone, and email. In particular, those in the financial sector are more vigilant.

80% of the major companies monitor their employees' internet usage, phone, and email.

Under US Federal Laws, employers have the right to monitor 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.

Under US Federal Law, employers have the right to monitor their employees as they perform their duties.

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.

Protection of employees' privacy in the USA

To protect employees' privacy, the Electronic Communications Privacy Act of 1986 (ECPA) and the Common Law Protections Against the Invasion of Privacy introduced some restrictions on the monitoring of workplaces. The ECPA prohibits the intentional interception of oral, wire, and electronic communication of the employees. Several exceptions also apply, although exceptions apply to employers. The first is the ‘Business Motive Exception,’ which permits employers to monitor employees at work through oral and electronic communications as long as it has been done for legitimate business reasons. Second is the ‘Approval Exception,’ which allows employers to monitor employees' communications/activities using monitoring apps and other means. It is worth noting that these laws are implemented differently in different states in the United States. In the US, one can deduce the following:

There are no federal laws requiring employers to provide employees with notice of their monitoring practices and virtually no privacy expectation for employees using company devices.

The protection of employee privacy in the EU

On the contrary, in what was referred to as a landmark privacy ruling, the European Court of Human Rights ruled that employers who monitor employees at the workplace must notify employees before monitoring their online communications.

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

Limitations do subsist: While employers are expected to inform their staff on the use of monitoring systems, emails, keystrokes, screen content can only be tracked when a documented agreement has been reached (monitoring policies and handbooks).

Our monitoring experts have developed ready-to-use policies, announcement samples, and employee monitoring handbooks for direct use or a sample to create future employee monitoring policies. Request a copy now. It's free!

There are two general directives on the protection of personal data in the EU that apply to employees. The first is the (97/66/EC) protection of individuals concerning personal data processing and the free movement of such data. The second (2002/58, which amends 97/66/EC) refers to the processing of personal data and the protection of privacy in the electronic communications sector.» (‘Data Protection at Work’ by the European Commission).

Protection of employees' privacy in Australia

In Australia, only a few states have workplace surveillance laws. For example, The Workplace monitoring Act of 2005 (NSW) s10, s12, stipulates, the employer may monitor an employee’s computer use only if a monitoring policy is available and the employees are notified that their computer activities are being monitored.

In Australia, employees must be notified that their computer activities are being monitored.

How does ethical employee monitoring apply

As regards ethical employee monitoring, Joseph Lazzarotti, a principal with Jackson Lewis law firm, asserts that: ultimately, there should be a balance between the legitimate business interests and weighing them against the expectation of employee, while also taking into consideration regulatory limitations which may vary state to state, country to country.

What is the most effective approach for monitoring workers

At the end of the day, observing both the legal and the ethical aspects of monitoring workers is crucial, but allowing the former or the latter to occur independently of each other creates increasing pressure on employees and dampens employer-employee correlation. Furthermore, the importance of using monitoring software cannot be over-sensationalized. Along these lines, drawing together the legitimate reasons for monitoring the workplace while at the same time maintaining absolute balance and transparency could just do the 'magic.' The final point of consideration is the persistent need for managers to increase productivity through employee performance continuously.

The use of monitoring software has been proven to be a very effective method if a healthy balance is maintained between the business interests and the employees' privacy.


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

What’s next