The New Face of Workplace Surveillance

Employers have begun utilizing biometric data collection methods, such as face recognition technology, as tools for workplace surveillance. Leveraging AI and assisted technology for surveying employees has become more prevalent in recent years due to the rise in remote work. Additionally, workplace surveillance has grown in office spaces, with MIT reporting that 80% of companies monitor remote and hybrid employees. These digital surveillance tools may allow for efficiency in performance and management when implemented correctly, but it is imperative that employers be transparent about and aware of the risks of emerging workplace surveillance technologies.

Biometric monitoring refers to tools that measure human biological and behavioral characteristics. Biometric technology includes, for example, facial recognition, fingerprint identification, and iris scanning. These tools are used in workplace surveillance to assist in employee timekeeping, tracking productivity, and monitoring attendance. Facial recognition and iris scanning can be used to monitor an employee’s productivity and screen time by tracking eye and facial movements. Though these tools provide aid in crucial aspects of employment and ease management tasks for employers, it is crucial that these workplace surveillance tools do not undermine an employee’s privacy, especially when someone is working from home.

Employers should consider that excessive monitoring using biometric technology can negatively impact employees’ productivity. According to an article, The Rise of Workplace Surveillance and its Impact on Productivity, over-monitoring can result in having employees who are more concerned about being monitored and avoiding trouble than focusing on doing their best work. Additionally, if employers are not up front about when and how they are monitoring their employees, employees may feel unsafe in their workplace and may be more likely to resist or try to break rules. Before employers implement these systems in their workplaces, they should be transparent with their employees on how these surveillance systems operate and the company’s compliance with legislation.

Employers should also be aware of the potential liability risks stemming from the use of biometric surveillance systems. Since there is no overarching federal law, employers must look at both state and local legislation, as well as federal laws that may be implicated. States and localities have enacted more robust consumer data privacy and security laws, and laws such as Illinois’ Biometric Information Privacy Act are on legislators’ radar. Texas and Washington have broad biometric privacy laws, and laws governing the processing of biometric information exist in California, Colorado, Connecticut, Utah, and Virginia. Additional states have laws that include biometric data in their data breach notification laws.

Employers should be aware of laws setting limits or other guidelines on employee monitoring. Some states have enacted restrictions on biometric data for productivity and screen time. For example, in Colorado, employers must obtain consent before collecting or using applicants’ and employees’ biometric information and must adopt a policy that addresses biometric information.

The Colorado Privacy Act limits employers to using biometric surveillance systems for just four purposes:

1.  Permitting access to secure physical locations and securing electronic hardware and software applications
2.  Recording the commencement and conclusion of the employee’s full workday, including meal breaks and rest breaks in excess of 30 minutes
3.  Maintaining certain safety and security purposes
4.  Improving or monitoring the safety or security of the public in the event of an emergency or crisis situation

Bottom Line:

Each employer needs to find the right balance. To some extent, monitoring employees may help ensure accountability and boost productivity, but too much or the wrong type may hinder productivity and lower morale — and it could be unlawful. Consent may be required in biometric data surveillance, and it is important that legal privacy rights be maintained for all employees when conducting any type of employee monitoring. It is also important that these biometric surveillance tools do not capture any off-duty activities of employees who are working from home. To mitigate this, employers who engage in monitoring activities should explain how these systems work to their employees and have a clear monitoring policy that complies with all applicable laws. Being clear on how these systems work will mitigate any risks of privacy violations and will make employees feel safer with the technology and lead to better productivity.

Steptoe & Johnson’s Labor & Employment Compliance team will continue to be at the forefront of any emerging legal developments within this area, and we are happy to help you formulate a lawful policy. We encourage you to reach out to members of our team if you have any questions or concerns.

The author thanks Allison Daniels, Summer Associate, for her contributions to this article.