The Rise of Workplace Surveillance

By Douglas Lipsky

Technological advances make it possible for employers to conduct surveillance in the workplace. According to a recent New York Times story, employees across multiple industries are subject to electronic surveillance via AI cameras, keystroke loggers, mouse micro-trackers, and other sensors. Such devices log and score workers’ productivity, and some employers base their evaluations and compensation on these metrics. 

While employers have legitimate interests in ensuring productivity, there are limits to the effectiveness of workplace surveillance. Let’s look at the downside of electronic employee monitoring.

A Brave New World For Employees

As the Times piece highlights, surveillance technology is spreading quickly, and moving faster than employees know and the government can regulate. The downside to these technologies include: 

Surveillance Technologies Are Often Inaccurate

New surveillance technologies can track workers’ online time, keyboard usage, and physical movements, and take screenshots of their work product. However, these technologies are inaccurate in interpreting such data – and unfair to workers. 

AI algorithms are being used to make judgments about employees but are unreliable at interpreting human meaning and activity, particularly for those who are working when they are away from the computers, such as social workers, therapists, and hospice workers. In some cases, workers who are away from their monitors are having hours deducted from their workday, which could result in wage and hour violations.

Surveillance is Bad for Employees

Pervasive surveillance in the workplace is unhealthy for employees. A recent study shows that oppressive electronic monitoring or even mere perceptions of monitoring causes stress and anxiety for workers. Workers under surveillance report high to very high levels of stress.

Workplace Surveillance Can Be Counterproductive

There is ample evidence that workplace surveillance can be counterproductive. One study found that workers are less creative and efficient when they are being watched and that privacy is important in improving performance and supporting productivity. Moreover, employees subjected to electronic monitoring often view their employers as dictators.

Why This Matters

Electronic monitoring at work is becoming increasingly common, especially because remote work is now a feature in the post-pandemic world. While employers have broad discretion in surveilling their workers, there are limits. 

In New York, a law became effective in May requiring private employers to notify employees of electronic monitoring. In particular, employers must:

  • Notify both current employees and new hires if they monitor or intercept phone conversations, email, internet access, or usage of other electronic devices or systems
  • Post the notice in a conspicuous place for employee viewing 
  • Have employees acknowledge receipt of the notice
  • Retain the acknowledgments for compliance purposes

Employers who violate this law may be fined $500 for a first offense, $1,000 for a second, and $3,000 for all subsequent offenses. Despite the requirements and potential penalties, the creep of electronic surveillance in the workplace will continue. 

When AI surveillance is used to rate productivity and determine pay rates, the risk of bias is high. The best way for employees to understand their rights regarding electronic monitoring is to consult an experienced employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.