• Skip to content
  • Skip to primary sidebar

Lathrop GPM

  • Team
  • Services
  • Sectors
  • Insights
  • Inclusion
Blogs

The Modern Workplace

Legal Issues with Employee Surveillance

September 17, 2013
  • PDF

Earlier this week we blogged about employee surveillance and its potential to change employee behavior. As noted there, employee surveillance is a powerful tool that raises significant legal issues, including those discussed below. 

Discrimination Laws.  State and federal discrimination laws prohibit employers from obtaining information related to the protected class status of applicants or employees, such as information about national origin, religion or genetic or family medical history. Employers must take care not to search for such protected information, whether through surveillance or otherwise, and must sequester it within a small need-to-know circle when it is unintentionally obtained. 

Protected Activity Laws.  A variety of laws protect certain employee activities, and legal risks are created for employers when surveillance encompasses legally-protected activity. The National Labor Relations Act (NLRA) is often applied to employer monitoring and surveillance activity, with varying results depending on the particular circumstances.  Surveillance, or even the impression of surveillance, if instituted in response to a union organizing campaign, is likely to violate the NLRA. On the other hand, enhanced surveillance of employees that coincides with organizing activity may be found not to violate the law when it is justified by legitimate concerns for security, product integrity, or quality control. In a unionized workplace, video surveillance implemented without first bargaining with the union may violate the NLRA, but ongoing video surveillance for security reasons is otherwise generally permitted. 

A patchwork of other state and federal laws protecting certain employee activity may also be implicated in employer surveillance initiatives. These include state prohibitions against taking employment action based on employees use of lawful consumable products such as tobacco. They also include federal and state whistleblower laws, as well as a wide range of statutes containing anti-retaliation provisions. Anytime surveillance looks for or finds such activity, it is important for the employer to have a policy and practice in place designed to reduce the possibility of liability arising from such information.

Privacy.  Laws governing general rights of privacy for employees vary from state to state. Many states also have laws about audio (and in some cases, video) recording of employee activity. Employers operating in multiple states must be especially mindful of the variations in these laws to avoid legal claims of invasion of privacy or unlawful monitoring. 

Email.  Monitoring employee work emails and online activity involves some risk of legal claims, but it is an appropriate and lawful action if an employer is using best practices, as discussed in our posts here and here. Generally, one of the best ways for an employer to reduce its risk of liability in this context is by providing employees with clear advance notice of its surveillance policies and by creating policies that set appropriate expectations regarding privacy on the employers systems and property. 

Other Federal Laws.  A variety of other federal enactments have important implications for employers engaged in workplace surveillance. These include the Fair Credit Reporting Act, which governs investigative reports prepared by a third party for employment purposes, the Electronic Communications Privacy Act, the Stored Communications Act, and the Computer Fraud and Abuse Act, all of which have effects that may enable or limit surveillance depending on the facts and circumstances. 

We will continue to blog about this important subject next week, offering some practical tips and best practices. Meanwhile, we encourage you to refer to the DEED/Gray Plant Mooty Social Media Guide that addresses many surveillance-related issues. The guide is available for free on GPM’s website.

Primary Sidebar

Sidebar content.

Related People

  • Media item displaying Mark Mathison
    View my Profile

    Mark Mathison

    Partner

    Minneapolis

    612.632.3247 Email

Stay up to date on the latest insights.

Subscribe
  • Terms of Use
  • Privacy Policy
  • Sitemap
  • 800.476.4224

© 2025 Lathrop GPM. All Rights Reserved. Attorney Advertising. Past results do not guarantee future results. Every case is different and should be judged on its own merits. The choice of a lawyer is an important decision and should not be based solely upon advertisements.

Lathrop GPM LLP, 2345 Grand Boulevard, Kansas City, MO 64108

Site by
We and our third-party partners use cookies and similar technologies on our website. Some cookies are strictly necessary for the website to function. We also use optional cookies to improve functionality and performance of the website, for analytics and to support our advertising operations. Certain advertising cookies will only be set with your consent. You can manage your cookie preferences through the “Cookie Settings” button. For more information, see our Privacy Policy.
Cookie Settings DeclineAccept
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
__cf_bm1 hourThis cookie, set by Cloudflare, is used to support Cloudflare Bot Management.
_cfuvidCalendly sets this cookie to track users across sessions to optimize user experience by maintaining session consistency and providing personalized services
algoliasearch-client-js1 yearNecessary in order to optimize the web site's search-bar function . The cookie ensures accurate and fast search results.
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
rc::aNever ExpiresThis cookie is set by the Google recaptcha service to identify bots to protect the website against malicious spam attacks.
rc::cThis cookie is set by the Google recaptcha service to identify bots to protect the website against malicious spam attacks.
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
CookieDurationDescription
ASPSESSIONIDQWBCSSBS1yearDescription is currently not available. Vuture is a third-party subscription tool used to send updates if you opt in to provide information to subscribe.
YSC1 yearYoutube sets this cookie to track the views of embedded videos on Youtube pages.
ytidb::LAST_RESULT_ENTRY_KEYNever ExpiresThe cookie ytidb::LAST_RESULT_ENTRY_KEY is used by YouTube to store the last search result entry that was clicked by the user. This information is used to improve the user experience by providing more relevant search results in the future.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
CookieDurationDescription
_ga1 yearRegisters a unique ID that is used to generate statistical data on how the visitor uses the web site.
_ga_#1 yearUsed by Google Analytics to collect data on the number of times a user has visited the web site as well as dates for the first and most recent visit.
vuid1 yearVimeo installs this cookie to collect tracking information by setting a unique ID to embed videos on the website.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
CookieDurationDescription
VISITOR_INFO1_LIVE6 monthsYouTube sets this cookie to measure bandwidth, determining whether the user gets the new or old player interface.
VISITOR_PRIVACY_METADATA6 monthsYouTube sets this cookie to store the user's cookie consent state for the current domain.
yt.innertube::nextId1 yearYouTube sets this cookie to register a unique ID to store data on what videos from YouTube the user has seen.
yt.innertube::requests1 yearYouTube sets this cookie to register a unique ID to store data on what videos from YouTube the user has seen.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
  • Team
  • Services
  • Sectors
  • Our Firm
  • Careers
  • Inclusion
  • Insights
  • Locations
  • Subscribe
  • Contact