By Samantha Egge
Workplace surveillance and monitoring has become increasingly popular tool for employers, skyrocketing during the pandemic and continuing to grow even after workers return to office. Employers use surveillance and monitoring tools, often using artificial intelligence (AI) or similar software programs, to track their employees’ location, create time logs, measure productivity, and more. These practices reach across industries, impacting everyone from factory workers, call center representatives, doctors, and lawyers. Workplace surveillance and monitoring has become the new norm as employees continue to work remotely, with many employees unaware of the breadth and depth what their bosses can see and how it is utilized by their employer.
How do employers monitor their employees?
Employers now have access to various means and measures of productivity tracking as options for workplace monitoring and surveillance tools developed substantially over the past decade. Workplace surveillance and monitoring tools can measure employee productivity via screenshots, video/audio recordings, keystroke counts, or task management tools, seamlessly evaluating employee performance. In some job areas, biometric measures, such as using fitness trackers, have been implemented to determine time worked and to track geolocation. Many of these tools are automated via AI or similar software programs, designed to supply detailed reports and data points to employers. This data can be used to directly make or assist with making critical employment decisions, such as promotions, disciplinary action, firing, and pay. 
What has been the legislative response to the increase of surveillance?
Federal action accounting for the use of AI or similar software programs in workplace surveillance has been limited. However, on September 8th, 2022, the Federal Trade Commission will be hosting a meeting, inviting public comment on their proposal for a Trade Regulation Rule on Commercial Surveillance and Data Security. This meeting will include the introduction of regulation(s) surrounding data security concerns for both consumers and workers. The EEOC and DOJ also recently published guidance on the use of AI and similar software programs in the workplace to prevent discriminatory actions against individuals with disabilities, as many of these tools have been shown to be biased against those with disabilities.
Some states and cities have taken action to protect employees from the increasing scope and ability for employers to monitor them without their consent or knowledge. Notably, the New York City Council passed a law, effective January 1, 2023, that requires employee notification of any automated tool or software that is involved in employment decision making. This includes productivity monitoring as it relates to promotions, firing, and payment. The required notification must include how these tools will be used in the evaluation process and what criteria or characteristics these tools will measure. The law also requires a bias audit to be completed on any software or tools no more than 12 months prior to use. 
What if my state or city has not passed any laws addressing workplace surveillance and monitoring?
While many states and cities have not passed specific legislation regarding workplace surveillance or monitoring, many have existing wiretap laws that limit what employers can access and monitor. Eleven states in the US require two party consent for recording, limiting employers’ ability to record video or audio without the consent of their employees. Further, employees continue to be protected by existing federal laws, the Electronic Communications Privacy Act of 1986 and the Wiretap Act. Both laws prevent monitoring of personal phone calls, emails, and electronic devices without consent or legitimate business purpose.
However, it is important for employees to review their employment contracts, as they may have already consented and agreed to monitoring or surveillance. Moving forward, employees should be aware of their protections under state and city laws and keep an eye on the current legislative season for any pending or upcoming legislation on the topic.
 See generally Polly Mosendz and Anders Melin, Bosses Panic-Buy Spy Software to Keep Tabs on Remote Workers, Bloomberg (Mar. 27, 2020, 7:00 AM), https://www.bloomberg.com/news/features/2020-03-27/bosses-panic-buy-spy-software-to-keep-tabs-on-remote-workers; see also Jena McGregor, The post-Pandemic Workplace Will Hardly Look Like the One we Left Behind, Wash. Post (Apr. 23, 2020, 7:00 AM), https://www.washingtonpost.com/business/2020/04/23/offices-after-coronavirus/.
 Mosendz and Melin, supra note 1.
 See generally Jodi Kantor and Arya Sundaram, The Rise of the Worker Productivity Score, N.Y. Times (Aug. 14, 2022), at P 5-8 https://www.nytimes.com/interactive/2022/08/14/business/worker-productivity-tracking.html; see also Annie Palmer, Amazon Is Rolling out Cameras that Can Detect if Warehouse Workers Are Following Social Distancing Rules, CNBC (June 16, 2020, 6:00 AM), https://www.cnbc.com/2020/06/16/amazon-using-cameras-to-enforce-social-distancing-rules-at-warehouses.html; see also Drew Harwell, Contract Lawyers Face a Growing Invasion of Surveillance Programs That Monitor Their Work, Wash. Post (Nov. 11, 2021, 8:00 AM), https://www.washingtonpost.com/technology/2021/11/11/lawyer-facial-recognition-monitoring/.
 See Sam Adler-Bell and Michelle Miller, The Datafication of Employment, The Century Foundation at § 3 P 18 (Dec. 19, 2018), https://production-tcf.imgix.net/app/uploads/2018/12/03160631/the-datafication-of-employment.pdf; see also There Will Be Little Privacy In the Workplace of the Future, The Economist (Mar. 28, 2018), https://www.economist.com/special-report/2018/03/28/there-will-be-little-privacy-in-the-workplace-of-the-future.
 See generally Adam Satariano, How My Boss Monitors me While I Work from Home, N.Y. Times (last visited May 7, 2020), https://www.nytimes.com/2020/05/06/technology/employee-monitoring-work-from-home-virus.html; See also Danielle Abril and Drew Harwell, Keystroke tracking, screenshots, and facial recognition: The box may be watching long after the pandemic ends, Wash. Post (Sept. 24, 2021), https://www.washingtonpost.com/technology/2021/09/24/remote-work-from-home-surveillance/; See also Steve Lohr, Unblinking Eyes Track Employees, N.Y. Times (June 21, 2014),
 Abril and Harwell, supra note 5.
 Alexandra Mateescu and Aiha Nguyen, Workplace Monitoring & Surveillance, Data & Society, at 7, (Feb. 2019), https://datasociety.net/wp-content/uploads/2019/02/DS_Workplace_Monitoring_Surveillance_Explainer.pdf.
 Id. at 12.
 Mateescu and Nguyen, supra note 7.
 FTC, Trade Regulation Rule on Commercial Surveillance and Data Security, Fed. Reg. 08/22/2022, https://www.federalregister.gov/d/2022-17752.
 Id. at 22.
 See ADA, 29 CFR Part 1630 & app, https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.; see also U.S. D.O.J., Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, (May 12, 2022), https://beta.ada.gov/resources/ai-guidance/.
 See S.B. 394 Gen. Assemb., Reg. Sess. (Ga. 2021), (introducing law that prevents collection of internet search history, biometric data, geolocation data, and audio/visual information); see also Con. Gen. Stat. § 31-48d; Del. Code. tit. 19, § 705, (requiring notice for employee monitoring); 740 Ill. Comp. Stat. 14 (preventing collection of biometric data without consent); California Consumer Privacy Act, 2018 Cal. Legis. Serv. Ch. 55 (A.B. 375) (WEST) (disallowing private companies from collecting internet browsing history or geolocation data without consent).
 N.Y.C. Admin. Code 20 ch. 5 § 25
 See Digital Media Law Project, Recording Phone Calls and Conversations, (Sept. 10, 2021) https://www.dmlp.org/legal-guide/recording-phone-calls-and-conversations.
 Id. at 6, (noting that California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington all have two party consent laws for recording).
 SHRM, Managing Workplace Monitoring and Surveillance at 9-10, (Mar. 13, 2019), https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/workplaceprivacy.aspx