Is employee keystroke monitoring software legal?
Quick Answer
It is legal for employers to use keystroke monitoring software, but they should inform employees that they are doing so and limit its use to legitimate work-related purposes.
Legal Perspective
Fox Rothschild LLP
Philadelphia, Pennsylvania
In short, yes, it’s legal to keep tabs on your employees’ keystrokes and web browser history, says employment law attorney Mark McCreary of the firm Fox Rothschild LLP. You just have to give them proper notice.
Typically, telling employees you have the right to monitor work-provided resources is enough. That can be placed in the employee handbook or displayed on their computer’s login screen.
It’s important to note that just because this is legal, doesn’t mean it’ll be popular with employees. There may be pushback if workers discover you’re monitoring their activity, so you should be prepared for that possibility.
Relevant Case Law
Rene v. G.F. Fishers, Inc.
Alexander v. City of Greensboro
Brahmana v. Lembo
HR Insight
CertiK
New York, New York
I am not a fan of keystroke monitoring software, says HR Leader Erin ImHof. I realize companies can do this, but it sends the message that they don’t trust their employees.
Perhaps if they are working on a government project or a private corporate project that deals with national safety, one can use this software, but it is not a good practice for most companies unless they suspect espionage, theft or other plausible reason for having it.
Project Management Institute
Newtown Square, Pennsylvania
An employer may use keystroke monitoring software for quality control or security reasons, says Global Talent Partner Anabel Selimov.
The decision is made depending on the employee’s role, such as a customer service rep or roles that involve high-level security clearance.
The Cost of Noncompliance
Remote work dispute: Company pays undisclosed sum to IC over tracking software
Who was involved: Crossover Market, LLC, a Texas company, and an independent contractor who performed work for it remotely.
What happened: The independent contractor alleged that the employer violated the Fair Labor Standards Act by using tracking software that did not accurately record all the hours she worked. More specifically, she said the software did not account for a variety of work-related tasks that were performed offline.
Result: The parties settled the suit for an undisclosed amount.
Info: Dockets and Filings in Kraemer v. Crossover Market, LLC, 5/5/21.
Key Takeaways
- It is legal to use keystroke monitoring software to track work activity on work equipment.
- Provide explicit notice to employees that keystroke monitoring software is being used, such as via a handbook provision or computer notification at login.
- Include the provision of notice of the monitoring policy as part of the onboarding process for new employees.
- Ensure that the software monitors only work-related activity, including by strictly limiting employee use of work computers to work-related activity.
- Do not use the software in a manner that may violate employees’ rights to engage in protected activity under the National Labor Relations Act.
- Some states, including Connecticut, Delaware and New York, explicitly require the provision of notice to employees before monitoring begins.
- Use the software evenly and not in a discriminatory way based on an employee’s membership in a class protected by law.
- When deciding whether to use such software, be aware of the negative effect its use may have on employee morale.
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