Key Takeaways:
- Employers may monitor workplace activity for legitimate business reasons, but surveillance used to discriminate or retaliate can violate employment laws.
- Selective monitoring based on race, sex, age, disability, or another protected characteristic may constitute discrimination.
- Increased scrutiny following a harassment complaint, accommodation request, or other protected activity may constitute retaliation.
An employer begins checking one employee’s emails and recording every break shortly after that worker reports harassment. Other co-workers with similar responsibilities, however, face no such scrutiny. Companies can monitor employees for legitimate business reasons… but that difference in treatment may point to retaliation.
What Types of Workplace Surveillance Can Employers Use?
Employers use several methods to monitor productivity, protect company information, and supervise employees. Common practices include the following:
- Reviewing company emails and messaging platforms
- Tracking internet activity and computer usage
- Recording workplace activity through security cameras
- Using GPS to monitor company vehicles
- Measuring productivity through keystroke tracking, mouse activity, or automated software
- Monitoring communications on company-owned devices
While these practices are not automatically unlawful and employers generally have considerable discretion to evaluate employee performance, a surveillance policy may still be unlawful if an employer applies it selectively or uses the information to justify discriminatory employment decisions.
When Does Workplace Surveillance Become Discrimination?
Surveillance may constitute discrimination when an employer subjects certain workers to stricter monitoring because of legally protected characteristics.
Federal laws (including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act), as well as state laws (Pennsylvania’s Human Relations Act and Philadelphia’s Fair Practices Ordinance) prohibit various forms of employment discrimination.
Examples of potentially discriminatory surveillance include the following:
- Requiring employees of one race to undergo stricter productivity monitoring than their co-workers
- Closely tracking older employees to identify reasons for termination while overlooking similar conduct by younger workers
- Monitoring an employee’s religious practices more aggressively than comparable workplace activities
- Using surveillance data to unfairly discipline employees with disabilities
Can Increased Workplace Monitoring Constitute Retaliation?
Yes. Increased surveillance may constitute unlawful retaliation when an employer uses it to punish or intimidate an employee for engaging in legally protected activity, such as reporting discrimination, participating in an employment discrimination investigation, or requesting a reasonable accommodation.
Consider an employee who reports sexual harassment to Human Resources. Shortly afterward, their supervisor begins recording every bathroom break, examining their emails, and documenting minor mistakes that co-workers routinely make without consequences.
The timing and unequal treatment in this scenario could support a retaliation claim, particularly if the employer cannot provide a legitimate explanation for their newfound actions. Any conduct that might discourage a reasonable employee from exercising protected rights could be considered unlawful retaliation.
Can Automated Monitoring Systems Discriminate Against Employees With Disabilities?
Automated productivity systems may unfairly penalize employees with disabilities when those systems fail to account for reasonable accommodations.
Software that measures productivity through keyboard activity, for instance, may inaccurately evaluate an employee who uses voice-recognition technology because of a visual impairment. Likewise, software that penalizes extended inactivity could disadvantage an employee whose approved accommodation includes additional breaks.
A low computer-generated productivity score does not excuse an employer from its obligation to provide reasonable accommodations when required by law.
Is Surveillance of Union Activities or Workplace Complaints Illegal?
The National Labor Relations Act (NLRA) protects many private-sector employees who discuss wages, raise collective complaints, or participate in union organizing. In these instances, employers generally cannot use surveillance to intimidate workers for exercising these rights. Management could violate federal labor law if they try to identify employees participating in protected union organizing or discourage collective workplace activity.
What Privacy Laws Restrict Workplace Surveillance in Pennsylvania?
Pennsylvania’s Wiretapping and Electronic Surveillance Control Act generally prohibits intercepting covered communications without an applicable legal exception. A company’s ownership of a device does not automatically allow it to record electronic activity. However, by the same token, employees should also not assume that their work emails, company computers, or business messaging platforms are private.
Whether surveillance violates Pennsylvania law depends partly on what the employer records and whether the recording requires consent.
What Should You Do if You Suspect Discriminatory Surveillance?
If your employer has singled you out for monitoring, any records of the surveillance and of your treatment compared with co-workers may help you establish a case for discrimination or retaliation.
Consider taking the following steps:
- Review company policies. Examine your company’s employee handbooks, surveillance notices, and monitoring agreements to determine what practices the employer has disclosed.
- Document changes in monitoring. Record when the heightened scrutiny began, and particularly if it followed a discrimination complaint, accommodation request, or other protected activity.
- Identify comparable employees. Note whether co-workers performing similar duties were monitored or disciplined differently.
- Preserve relevant communications. Retain any lawfully accessible emails, performance reviews, disciplinary notices, and written complaints.
- Consider reporting your concerns. When appropriate, raise concerns through Human Resources or another established reporting channel.
- Seek legal advice. An employment lawyer can review whether the evidence supports discrimination, retaliation, or a privacy-related claim.
Importantly, avoid secretly recording conversations or accessing confidential company information without authorization.
How Long Do Employees Have to File a Workplace Discrimination Claim?
Filing deadlines vary depending on the law and the agency handling the complaint. In Pennsylvania, employees generally have 180 days to file a discrimination complaint with the Pennsylvania Human Relations Commission. “Federal” discrimination charges commonly have a 300-day filing deadline in jurisdictions where state or local agencies enforce comparable protections. Philadelphia’s local discrimination complaint deadline is generally 300 days.
Frequently Asked Questions (FAQs):
Can my employer monitor me without telling me?
Some workplace monitoring may be lawful without individualized notice, depending on the technology and circumstances. Recording communications, however, may trigger consent requirements under Pennsylvania law.
Can I be fired for refusing workplace surveillance?
An employer may discipline employees who refuse lawful monitoring policies. However, termination may be unlawful if it involves discrimination, retaliation, or interference with protected rights.
Can surveillance alone qualify as retaliation?
Potentially. Unjustified, heightened monitoring may constitute retaliation if it would discourage a reasonable worker from exercising protected rights and was imposed because of protected activity.
Is it illegal for my employer to monitor only me?
Not necessarily. Employers may have legitimate reasons to investigate individual performance concerns. However, selective surveillance motivated by protected characteristics or protected activity may violate employment laws.
If You Have Experienced Unlawful Surveillance or Monitoring in the Workplace, Speak With Our Experienced Philadelphia Employment Lawyers at The Gold Law Firm P.C.
If your employer has subjected you to selective surveillance or increased monitoring after you exercised protected rights, call our Philadelphia employment lawyers at The Gold Law Firm P.C. today at 215-569-1999 or fill out our online contact form to schedule a free consultation. With office locations in Philadelphia and Malvern, Pennsylvania, Pennsauken, New Jersey, and New York, New York, we proudly serve clients in the surrounding areas. *NYC, Pennsauken, and Malvern offices are by appointment only.
