While Big Brother is now a 75-year-old term thanks to George Orwell and his classic novel “1984,” some would say the concept is growing as more companies implement some form of employee monitoring.

The pandemic accelerated the spread of this practice.

“By the height of COVID we saw 60 percent of companies with over 500 employees using some sort of monitoring method. It has not gone away,” said Arif Virji, the partner in charge of the labor and employment group at Carle, Mackie, Power & Ross LLP in Santa Rosa.

While some labor law attorneys are seeing an uptick in business clients wanting to know how to legally use this type of monitoring, plenty of other companies want nothing to do with the trend.

An employee at Summit State Bank in Santa Rosa said, “We don’t play Big Brother; that is not our MO.” Napa Valley Wine Train also has zero surveillance on workers, calling the devices “sort of Big Brotherish.”

According to a Pew Research Center study, “If AI were used to collect and analyze information about how workers are doing their jobs, about 8 in 10 say workers would definitely (52%) or probably (29%) feel like they were being inappropriately watched. A majority also agrees this would lead to the information collected about workers being misused (66%).”

Companies have a slew of options to choose from when it comes to tracking employees. WorkTime, a firm that sells software to businesses, offers ways to monitor attendance, productivity, overtime, active vs. idle time, internet use, and login and log-out times.

WorkTime’s website reports a key factor propelling the demand is to spur employee productivity.

Tracking also can come via length of time on the phone, emails sent and received, software downloads, key strokes per hour, what’s stored on a computer, behavior of delivery drivers and long-haul truckers via GPS trackers, and video surveillance in any office or vehicle.

Virji knows of a law firm, which he would not name, that mandates attorneys sign onto Zoom the entire time they are in the office so a partner can monitor them.

“The Electronic Communications Privacy Act permits employers to monitor oral and electronic communications if they have a legitimate business purpose or obtain employee consent,” Virji said.

Microsoft Teams, which a plethora of industries use, offers various monitoring functions for free.

When it comes to tracking computers, it would be illegal to do so in California on a worker’s private device. A company provided laptop is a whole different story.

While labor law attorneys will usually advocate for transparency — as in the company should tell employees when and how they are being monitored — that isn’t always the case.

“I think most employees are not aware of the extent of monitoring that is going on,” Virji said.

What is near impossible to capture, except possibly if someone is always under video surveillance, is offline work.

Virji said a case from 2021 involved an employee suing for back wages. She had printed her work documents because she preferred to read the information on paper where she could use a highlighter. The employer thought she wasn’t working because the monitoring tools said she wasn’t.

Employees are also figuring out workarounds to some of the monitoring tools, in some cases helped by social media sites that offer tips on how to avoid workplace monitoring. It’s possible, for example, to install software to move a mouse around as well as buy a device that sits on top of a mouse that essentially vibrates at programmed times.

Virji said, “The National Labor Relations Board has held that employers with a unionized workforce must obtain the union’s consent before conducting any video surveillance of unionized workers.”

Privacy is the No. 1 issue for employers to consider before installing monitoring devices at the workplace — especially in California.

The state Constitution, unlike the U.S. Constitution, covers privacy issues. There are also laws and case law that can help companies navigate what is legal.

“The way a lot of employers protect themselves in California is to disclose there are cameras and obtain employees’ consent that there are cameras posted, and that while on work time they will be subject to surveillance,” explained Valorie Bader, of counsel for Welty, Weaver & Currie law firm in Santa Rosa.

Employees can say no to whatever the monitoring technique is. In turn, employers can make the devices a condition of employment.

Bader advises her clients to be upfront with workers about the tools being used.

She is seeing an uptick in inquiries from businesses about monitoring since the pandemic shifted workers to remote workplaces and productivity has been declining.

“What I see is COVID and the political situation has so affected employee moral that productivity is way down. The ability for employees to work with each other and follow reasonable rules is way down,” Bader said. “As a result of this loss of production and loss of quality, employers are resorting to making more objective observations about an employee’s performance and resorting to these (techniques).”

California lawmakers in 2022 toyed with legislation that would have regulated employee monitoring, but it went nowhere.

According to Virji, “Only three states have enacted legislation requiring employers to provide employees with notice of workplace monitoring.”

His advice to clients is to do this:

• Be transparent about employee monitoring.
• Track only what is necessary.
• Choose employee monitoring methods carefully.
• Carefully evaluate the pros and cons of employee monitoring.
• Take measures to adequately protect collected employee data.

Virji acknowledges there are plenty of risks involved with using technology to keep track of workers.

“The more data that is collected, the more likely it is that an employer will gather employee financial or medical information that may be protected by privacy laws,” Virji said. “Such information is protected from disclosure under the Health Insurance Portability and Accountability Act (HIPAA) or the Americans with Disabilities Act (ADA). Employers must take steps to protect such information from potential data breaches.”

Surveillance could also turn up personal information like sexual orientation, a disability, financial status and other private details that an employee might not have willingly disclosed.

“That knowledge obligates the employer to not discriminate on the basis of that characteristic,” Virji said.

Note: A version of this story first appeared in the North Bay Business Journal.