Increasingly popular during the pandemic are apps known as “bossware” and “tattle ware.” These software programs allow supervisors to track the work performed by work-from-home employees. These apps can monitor websites visited, log key strokes, take screenshots and even record video and audio. But, do such apps violate an employee’s privacy? Some states, such as Delaware, New York and Connecticut, require employers to notify employees they are being monitored. But, most states do not. Even so, monitoring rises to a new level when it is at your home.
Even in the traditional workplace, Texas courts allow employers to monitor employee phone calls when using the employer’s phone. An employer can take photos of the employee’s publicly displayed calendar at work. Oyoyo v. Baylor Health Network, No. 99-CV-00569, 2000 WL 655427 *5 (N.D. Tex. 5/17/2000). But, if the employer monitors phone calls, it must notify the employees. Texas has no statute governing employee privacy. So, any lawsuit must rely on the common law tort of invasion of seclusion or of privacy. Since there is no state statute, any court addressing alleged invasion of privacy at a worker’s home would have to address what parts of the home would the worker have an expectation of privacy. That would lead to a very fact-intensive inquiry regarding where the at-home worker conducts his/her work.
Purchases from software makers, such as Hubstaff and Awareness Technologies surged during the pandemic. Marketed under names like Time Doctor and StaffCop, these new technologies represent a new sort of intrusion on the work place. According to one survey, 60% of companies were using the software. That represented double the number before the pandemic. Many employers obtain consent from the employee for such monitoring. But, we wonder what sort of consent. Does the content apply specifically to key strokes, or to something more? See ABA Bar Journal report here for more information.