Tracking Software & Employees: What you need to know!

It is clear that remote work is here to stay.  As we transition to this new normal, employers are using tracking software to monitor their employees, judge productivity, decide on promotions, and, even in some cases, determine how much they should pay them.  A recent NY Times article, The Rise of the Worker Productivity Score, highlights many of the social, ethical, and operational issues arising due to this technology.   But what about the employment law issues? This is a new area rife with potential employment law missteps including:

  • Wage & Hour – Wage Theft.  Under federal and state law, a nonexempt (hourly) employee must be paid for all time worked.  If an employer wishes to use tracking software to determine the hours worked and, thus, the employee’s wages, it must ensure that it is accurately measuring the employee’s hours.  What happens if the computer is idle if an employee is doing non-computer work, such as taking a call or speaking to co-workers? What happens if the idle time is because the employee is taking a short break or in the bathroom? All of these issues should be addressed both practically and in a written policy informing employees.
  • Wage & Hour – Overtime.  Under federal and state law, virtually all nonexempt (hourly) employees must receive “time and a half” overtime pay for hours worked over 40 in a workweek. Employers using tracking software cannot ignore the employee who works extra time, nor should an employer ignore the supervisor who sends communications to employees outside of the employee’s scheduled hours creating an expectation that the employee respond. The software will create the record that the employer “suffered or permitted” the overtime, even if the employee did not request prior approval to work the overtime or the supervisor instructed the employee not to work overtime.
  • Employee Privacy.  If the tracking software records all the employee’s moves on the computer and, in some cases, takes photos of the employee, then the employer must ensure it follows the applicable privacy laws. A privacy policy outlining what is collected and how it is used is important to limit liability, as is a clearly documented response plan should an unauthorized breach occur.  Employers may also consider whether employees need to be provided company computers to be used only for company purposes because doing so will limit the amount of unnecessary personal information collected. 
  • Confidential Information.  It is also essential that the employer ensure that the technology has the appropriate security features to protect confidential information. This is especially true in certain industries, such as law firms and doctor’s offices, that have a higher standard of protecting their clients’ confidential information.
  • Discrimination and Reasonable Accommodations. By providing objective data that an employer can use to promote or discipline employees, tracking software could be helpful in eliminating potential discrimination claims. However, what happens if an employee has a disability that puts them at a disadvantage with the tracking software? Employers must continue to be vigilant to prevent any discrimination and ensure that it provides reasonable accommodations when asked.

If you are considering implementing a tracking software system, please do not hesitate to reach out to us. We’re here to help with this or any other business issues.

Natasha M. Nazareth, Esq.
Ginny Cascio Bonifacino, Esq.