How AI Is Changing Workplace Surveillance
Employers have long used technology to monitor workplace activity. Timekeeping systems, security cameras, GPS tracking, email monitoring, and computer-use software are nothing new. Artificial intelligence is making these systems considerably more capable.
Modern workplace software can analyze how employees use their computers, measure activity levels, flag unusual behavior, transcribe or analyze communications, track location, and generate assessments based on large amounts of employee data. Some systems are marketed as productivity tools. Others are designed to identify potential security risks or policy violations.
The legal questions become more complicated when monitoring moves beyond observing workplace activity and begins making inferences about an employee.
An employer may be able to monitor certain activity on company equipment or during working hours. That does not necessarily mean every form of surveillance is permissible, however. The circumstances matter, including what information is collected, how it is collected, why it is collected, and what the employer does with it.
What Can AI Workplace Monitoring Track?
The capabilities of workplace monitoring software vary considerably.
Depending on the system and the employer's policies, an AI-powered platform may analyze information such as:
- Computer activity. Software may track applications, websites, keystrokes, screen activity, or periods of inactivity.
- Communications. Some systems can analyze emails, workplace messages, or other communications for particular terms, patterns, or potential security concerns.
- Location. GPS and location data may be collected from company vehicles, mobile devices, or other workplace technology.
- Productivity data. Employers may use software to measure activity, time spent on particular tasks, project progress, or other performance-related metrics.
- Workplace behavior. AI systems may identify patterns across large amounts of information and flag activity that appears unusual or inconsistent with company policies.
The presence of a monitoring system does not automatically answer whether its use is lawful. The legal analysis can depend on the technology involved, the workplace, applicable federal and state laws, company policies, and the nature of the information being collected.
Does an Employer Have to Tell Employees About AI Monitoring?
One of the first questions employees may have is whether an employer has to disclose that monitoring is taking place.
There is no single rule that applies to every form of workplace surveillance. Employers may have policies addressing computer use, company devices, electronic communications, monitoring, or data collection. An employee handbook or technology-use agreement may also provide information about what employees should expect when using company systems.
State law can create additional considerations, particularly when monitoring involves communications, recordings, location information, or other potentially private data.
The distinction between company resources and an employee's personal life can also become important. Monitoring activity on a company computer during working hours presents different issues from accessing information on an employee's personal device outside of work.
Can AI Monitor Employees Working from Home?
Remote work has made workplace surveillance more complicated.
An employee working from home may be using a company laptop, connecting to company systems, and performing work during scheduled hours while physically located in a private residence. Employers may have legitimate reasons to monitor company systems and protect confidential information, but remote work can also blur the line between workplace activity and an employee's personal environment.
For example, software that captures screenshots, records activity, tracks location, or monitors communications can potentially collect information beyond what an employee expects to be part of the workplace.
Employees should pay attention to the policies governing company devices and remote work, particularly when personal and professional technology overlap.
What About AI Decisions Based on Employee Data?
AI monitoring raises another issue when the collected information is used to make decisions about employees.
An employer might use data generated by workplace software as one factor in evaluating productivity, attendance, performance, or compliance with company policies. More sophisticated systems may identify patterns and generate automated recommendations or alerts.
That can create legal questions when an AI-generated assessment affects an employee's compensation, discipline, promotion, scheduling, or termination.
An algorithm's output does not necessarily eliminate an employer's legal obligations. Employment decisions may still be subject to laws governing discrimination, retaliation, wage-and-hour issues, workplace privacy, and other employment practices.
Employees who believe an automated system has produced inaccurate information or contributed to an unlawful employment decision may have reason to document what happened and review the policies governing the technology.
What Should Employees Do If They Are Concerned About Monitoring?
Employees who believe they are being monitored inappropriately should start by understanding what their employer has disclosed about its technology and workplace policies.
Consider taking the following steps:
- Review workplace policies. Look at employee handbooks, technology-use policies, remote-work agreements, and other documents addressing monitoring or company devices.
- Understand the technology. Determine what information the system appears to collect and whether it is limited to company equipment, work hours, or workplace accounts.
- Document concerns. Keep records of communications, policies, monitoring notices, or employment decisions that may become relevant to a dispute.
- Avoid assuming privacy. Personal information should generally not be stored on company devices or accounts simply because an employee expects it to remain private.
- Seek legal advice when appropriate. If monitoring appears to involve private communications, personal devices, retaliation, discrimination, or another potential legal violation, an employment attorney can help evaluate the circumstances.
The specific facts matter. A monitoring system that is permissible in one workplace may raise different legal issues in another.
Where Does Workplace Privacy Go from Here?
AI is changing the scale and sophistication of employee monitoring. Employers can collect more information, analyze it more quickly, and identify patterns that would have been difficult to detect using traditional workplace surveillance.
That does not mean employees have no privacy interests at work. It means the boundaries are becoming more complicated.
For employers, the challenge is to establish clear policies and use monitoring technology consistently with applicable employment and privacy laws. For employees, knowing what information is collected and how it may be used is an important part of understanding their rights.
Scaringi Law represents employees and employers in employment law matters and can help evaluate workplace disputes involving privacy, workplace policies, monitoring, and employment decisions.
Call (717) 775-7195 or contact us online to discuss your situation.