Employers have many incentives to monitor employees, whether to protect assets, safeguard the workplace, track productivity, or deter workplace violence and other misconduct. For many years, employers’ options for monitoring employee conduct were relatively limited. Video surveillance, physical searches of employee offices or worksites, and eventually monitoring of workplace emails were among the prevalent forms of monitoring. In recent years, the options have broadened significantly, and employers now have a wide array of choices, from GPS monitoring to biometric information, web browsing data, keystroke logging, social media monitoring, and more. But just because employers can take advantage of these options, does that mean they should? And is it legal to collect employee data, use, and maintain it?

The United States has traditionally taken a hands-off approach when it comes to regulating employers’ ability to monitor employees. There has been little in the way of statutory restrictions, and much has been written about employers’ growing ability to capture and mine employee data for purposes of enhancing employee productivity, safety, and security, among other things. As attractive as the options may be, before aggressively collecting and analyzing all available employee data, employers should look carefully at the trends in privacy law and consider how they may impact employers’ duties and obligations, both now and, potentially, in the future.

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