Although it can be a controversial decision, monitoring employee activity has become common practice for small businesses. Using employee monitoring software to track how employees are using company-owned devices (e.g., desktop computers, laptops, cellphones) can boost company security, increase employee productivity and provide extra legal protection. However, implementing a proper employee monitoring system takes careful consideration. If you are considering using this type of software, it is important to know your legal rights regarding monitoring employee activity (primarily employee cellphone usage) and how it can benefit your organization.
Is employee monitoring software legal?
Yes, it is legal for businesses to use employee monitoring software. On company property like work laptops and cellphones, employees should expect little to no privacy for their user activity. However, this doesn't mean you can secretly monitor anything your team does; some states have guidelines about monitoring employees and limitations on what information employers can gather. For example, some states, such as Connecticut, require you to tell employees before monitoring them.
Even if you have the legal go-ahead to monitor your employees, it doesn't necessarily mean you should. Companies should only monitor employees for legitimate business reasons, and poor implementation of a workforce monitoring policy can result in a team of disgruntled or concerned employees or, worse, litigation.
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What can you legally monitor on an employee's cellphone?
According to Michael Trust, human resources leader and certified mediator at Michael Trust Consulting, if an employer provides an employee with a smartphone, any data created, used or accessed on that device is owned by the employer. This can include phone calls, voicemails, text messages, instant messages (e.g., WhatsApp and Facebook Messenger), emails, GPS locations, photos and web browsing history.
"The company owns the phone and the data and can review any and all of it at any time, and for any reason," Trust told business.com.
Even though you may have legal rights to the data on your company cellphones, you still need to take legal precautions by creating a clear and comprehensive monitoring policy that discloses what information you are collecting and how you are using it. This written policy should be signed by each employee who will be monitored.
"If the business does not have a policy like that, or has one and never enforces it, then employees may have some reasonable expectation of privacy in personal information on the phone or use of the phone," said David Miller, labor and employment attorney at Bryant Miller Olive. "If the company accesses private information, particularly information a reasonable person would expect to be confidential, it could be vulnerable to a lawsuit."
Miller added that public sector employers face the added restrictions of the Fourth Amendment prohibition of unreasonable searches. Establishing a clear policy that removes the expectation of privacy is key to legally tracking employee cellphones.
Personal cellphones for business use
Be wary of employees who want to use their personal devices for business, because this brings a whole different set of monitoring issues. Trust listed five common issues associated with employees using their own cellphones:
- It can be difficult to get company data off a personal phone.
- The employee might not allow you to review the phone's contents.
- You have far less control over what they are doing on the phone, particularly with sensitive data or any illegal acts.
- You have no idea what they may be accessing on the phone unless your systems log it on the server side.
- In some states, you may have to reimburse the employee for the business use of their personal cellphone.
"There is software that can be installed on a personal cellphone to segregate personal and business files, and the company would retain the ability to wipe the business side and to see what was occurring," Trust said. "That's the hybrid solution, but it still may require, depending on [the] jurisdiction, reimbursement for usage overall."
Why should you monitor employee cellphone usage?
Monitoring how employees use their company-issued cellphones can be very beneficial to your business. For starters, cellphones are more portable than computers and typically offer more insight into an employee's behavior (especially regarding conversations and location). Though the benefits you gain from tracking employees will depend on the employee monitoring solutions and policies you implement, we've identified some of the most common benefits.
- Illegal activity. If an employee is using their mobile device for illicit activities (e.g., theft, gambling, pornography, drug dealing, harassment), you can quickly identify it and follow through with the appropriate disciplinary and/or legal actions.
- Data security. It is essential for businesses to secure digital assets like company data and trade secrets. Monitoring employee cellphones can show you if or how an employee is inappropriately sharing information. Additionally, you can see if they access malicious content like malware, whether intentional or unintentional.
- Employee location. Most cellphones have GPS tracking capabilities, so you can use monitoring software to track and verify employees' locations. This is especially useful for employees who work in various locations.
- Employee productivity. You can track employee productivity through their cellphone usage. For example, Trust said a business could verify that an employee met their quota for number of sales or customer service calls.
- App and data usage. You may want to see if employees are using their company-issued phones for nonbusiness purposes. If an employee is making lengthy personal calls or using a significant amount of data for personal reasons, it can cost your business a lot of money.
- Legal compliance and protection. Companies in highly regulated industries, like healthcare and financial services, can certify that employees' mobile device usage adheres to legal guidelines. If an accident happens, or an employee or customer seeks litigation, you can use the employee cellphone data as legal protection for your business.
- Company reputation. In some circumstances, Miller said, the phone is identifiable to others as associated with the company. "In that case, the employee-user may be reasonably perceived by others as a representative of the company, and her conduct on the phone or other use of the phone may reflect on the company."
Which solutions are available for employee cellphone monitoring?
There are multiple ways to monitor employees' cellphone usage. For example, you can perform manual monitoring by checking phone records and mobile phone bills, or you can install a tracking app on each device. You will likely need to create a hybrid solution to best support your reason for monitoring. After speaking with experts, we determined a general process for implementing an employee cellphone monitoring program.
1. Establish what type of monitoring you will implement.
As previously mentioned, there are several ways to track how employees use their company-owned mobile devices. You first need to identify your reasons for monitoring (e.g., security, productivity, legal compliance) and then look for a solution that provides those benefits. For example, cellphone monitoring software like InterGuard and Cocospy is available for iOS and Android devices, and other software is available to block specific applications.
2. Create a written policy, disclose it to employees, and get their signatures.
Always err on the side of caution when determining a monitoring solution. However, once you have decided on a solution, create a written policy on company communications devices, and discuss it with your employees. The policy should clearly outline limitations on usage, what is being monitored, and any disciplinary actions for noncompliance.
"The policy should also state that the employee has no expectation of privacy regarding any use of the equipment or anything stored on it and that the equipment is subject to examination by the company on demand," Miller said. "A policy like this, clearly communicated, eliminates any argument an employee might have that his privacy was invaded if and when the company looks through the phone or monitors its use."
Review the policy with your employees, and have them sign a statement agreeing to the terms.
3. Monitor and enforce your policy.
Once you start monitoring your employees, provide periodic training to keep them up to date on your guidelines and expectations. Inform your team of any new surveillance features, and enforce the monitoring policies uniformly across your organization.
"Any illegal activity found by the software can be used for disciplinary action (perhaps even termination) in accordance with your organization's policies and procedures," Trust said.