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.

In May 2018, the European Union's General Data Protection Regulation (GDPR) went into effect, expanding EU residents' rights to protect and control the collection and use of their personal data, and threatening stiff fines for non-compliance. The GDPR inspired similar legislation in the United States, with California taking the lead in passing a sweeping piece of privacy legislation, the California Consumer Privacy Act (CCPA), that takes effect on Jan. 1, 2020. The CCPA, while not quite as comprehensive as the GDPR, is ground-breaking in terms of the requirements it imposes on companies seeking to collect and use a wide array of personal data relating to California residents.

Among other things, the CCPA gives individuals the right to request a covered business to disclose the personal information that the business has collected about the individual, provide the individual, free of charge, with a copy of the personal information that the company has in its possession about the individual, and delete personal information about the individual that the business has collected. Covered businesses are also required to notify individuals (including employees and job applicants) of all the categories of personal information the company collects about them, and the business purposes for which the information is being used. The CCPA permits civil lawsuits against businesses that fail to implement reasonable security procedures, if the procedures result in a data breach.

Amendments are pending that would temporarily postpone by one year some of employers' more onerous obligations under the CCPA, but even if those amendments pass, employers would still be required to provide notice of the collection of employees' personal information and the purpose for which that information is used, including, specifically, some of the data that employers traditionally collect in the course of monitoring employees. This includes information from company devices or vehicles, including geolocation data, browsing history or search history, biometric data, information captured from video, audio, systems, or other forms of monitoring or surveillance, and other forms of employment-related information.

In the wake of the CCPA, other state legislatures have begun introducing legislation that borrows, in whole or in part, from the CCPA. At least a dozen states have introduced similar legislation, and more states are likely to follow suit. Although no states have yet passed statutes that are as comprehensive as the CCPA, the trend is moving in the direction of enhancement of individuals' rights, including employees' rights to protect and limit the collection and use of their personal information. At the same time that states are considering broad expansion of individuals' privacy rights, many have already passed enhancements to existing data breach notification laws that require companies that collect certain personal information to protect the security of the data that is collected, or risk exposure to possible fines and regulatory enforcement actions, as well as civil litigation in certain jurisdictions.

These rights are in addition to those that may already exist in common law, as well as rights conferred by more specific statutes, such as the Illinois Biometric Information Protection Act (BIPA), passed in 2008, which imposes notice, consent, retention, dissemination, and other requirements and restrictions on companies that collect biometric data. The BIPA permits private individuals to file litigation, and has spawned numerous class actions against unsuspecting companies that failed to strictly adhere to its requirements. Still other state statutes can limit an employer's ability to require employees and job applicants to share access to and information from social media accounts. In addition to all of this, the National Labor Relations Act has long imposed restrictions on the ability to monitor certain employee communications relating to protected concerted activity, as well.

When considering whether and how to monitor employees and collect available employee data, employers should consider whether the information they are collecting serves a legitimate business purpose, how long the company may need the information, whether the company has adequate security measures in place to protect employee information that it does collect, and whether developing laws require notification to employees prior to collection, as well as disclosure of the business purposes for which the data will be used. Gone are the days when employers could expect to monitor employees' behavior and activity with relative impunity. Privacy laws are slowly and steadily making advancements in the protection of individual rights, and catching up with current technology. Employers would do well to take note of these advancements, monitor the status of pending privacy legislation, and adjust their practices and procedures accordingly.

Risa B. Boerner is a partner at the national labor and employment law firm Fisher Phillips and is chair of the firm's Data Security and Workplace Privacy Practice Group. She can be reached at [email protected].

Jeffrey M. Csercsevits is of counsel in the Philadelphia office of Fisher Phillips and is a member of the firm's Data Security and Workplace Privacy Practice Group. He can be reached at [email protected].