Electronic Monitoring Laws For California Telecommuters

The explosion of workplace surveillance that followed millions of workers to their home offices during the pandemic has opened the door to a massive question of workplace and employee privacy. California telecommuters should be familiar with the laws that protect their rights in the workplace, even when that workplace is their own home.

How Are California Employers Monitoring Their At-Home Workers:

Pre-pandemic, many managers would walk through the office, dropping in on team members periodically to check in on their staff. Since the pandemic, managing staff has abruptly changed. New methods of supervising employees became necessary:

• Software installed on company-provided laptops to track time
• Monitoring keystrokes
• Monitoring mouse movement
• Monitoring screen activity
• Tracking location by GPS on electronic devices, laptops, phones, or vehicles
• Monitoring social media accounts
• Monitoring internet surfing activity
• Monitoring logins
• Monitoring messaging apps
• Monitoring collaborative programs and apps like Microsoft Teams, Google Workspace, Microsoft Office, Slack, etc. to track an employee’s time working
• Webcam monitoring

Federal Electronic Monitoring Laws For California Telecommuters:

While the cause of the swift change in management practices is easy to identify, that doesn’t make the difficulties that come along with it any easier to address. When does employee monitoring for productivity purposes step over the line into invading the employee’s privacy? The first line of defense to protect California worker privacy is at the federal level. The Electronic Communications Privacy Act (ECPA) governs the monitoring of electronic communications in the workplace. Generally, the ECPA prohibits intentional interception and monitoring of employees’ communications (oral, wire, and electronic).

Does California’s Labor Code Include Any Additional Protections?

While an employer’s use of technology is generally legal, the recent influx of monitoring at-home workers prompted California to seek additional means of protecting their workers. In 2022,

California proposed a bill to restrict employers’ use of technology to specific times of day, certain activities, and particular locations. The “Workplace Technology Accountability Act” (AB 1651): Assemblymember Ash Kalra introduced AB 1651 in 2022 to help protect workers against using technologies in the workplace that can negatively affect the employee’s privacy and overall well-being. The bill would attempt to establish reasonable limitations on employers seeking to use unregulated data-driven technology and give workers and the state the tools to address any adverse impacts the use of such tech may cause.

What Is AB 1651 Workplace Technology Accountability Act?

A first-of-its-kind measure, the Workplace Technology Accountability Act passed the Assembly’s Committee on Labor and Employment. The bill is currently pending with the Committee on Privacy and Consumer Protection. If the bill passes, AB 1651 would require California employers to turn to the “least invasive” means of monitoring their employees electronically and limit it to times when it was strictly necessary to accomplish one of the “allowable” purposes specified in the bill:

• Allow an employee to complete an essential job function
• Assess worker performance
• Monitor production quality or production processes
• Ensure compliance with the law
• Protect worker safety, health, and security
• Distribute wages or benefits
• Additional allowable purposes may also be added, but only as determined by the labor agency.

Would AB 1651 Prohibit Employers From Using Technology?

If enacted, AB 1651 would also expressly prohibit employers from:

Monitoring their workers when they are off duty

Tracking and monitoring an employee’s personal device

Monitoring employees in private areas (including vehicles or residences)

Using monitoring programs or systems that use facial recognition, gait, or emotion recognition technology.

Even when using technology in compliance with the law, AB 1651 would require employers to inform employees when they collect data regarding:

• What data is collected
• When the information is collected
• When employee monitoring occurs
• What algorithms the data collection uses
• How the employer uses the data

If you need to discuss employment law violations, contact Moss Bollinger, Sherman Oaks, California employment law attorney. He’s dedicated to protecting and asserting the rights of his clients. Call (310) 982-2291 today for a free consultation, or contact us online.