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  • Writer's pictureSarah Anderson


With millions of individuals forced into quarantine by federal and state orders, certain businesses rely on its employees’ promises to telecommute. In many ways, this is a leap of faith for the employer, trusting that each employee is disciplined enough to work without supervision and informed enough not to jeopardize information security.

For some telecommuters (me!), a quiet home environment increases productivity given the absence of co-worker conversations, office politics, commuting, and unnecessary primping. That said, everyone is different and with schools out, many homes are anything except quiet.

But for employers with an inexperienced remote workforce, the installation of digital monitoring software (also called spyware) presents several benefits and in Louisiana, relatively low legal risk.

1. Louisiana and Federal Law Allows It. Although employers are “generally” prohibited from conducting unauthorized surveillance of an employee’s computer activity, there are two widely used exceptions recognized under both Louisiana and Federal law (La. Rev. Stat. Ann. § 15:1303 and 18 U.S.C. § 2510 et seq.):

  • “Business extension” Exception: allows an employer “in the ordinary course of its business” to use its own communication equipment to monitor the employees’ electronic communications. The employer must have a legitimate business need to monitor the communications and the communications must be limited to those pertaining to the business.

  • Consent Exception: An employer may monitor electronic communications where one party to the communication has consented to the monitoring. Unlike the “business extension” exception, the consent exception does not apply only to communications that are of a business nature. The employer must announce the policy concerning monitoring employees’ electronic communications in advance of implementing the policy. Employees that continue to work for the employer following the announcement are considered to have consented. However, it is best and strongly advised to receive written consent (often in the form of employment agreements).

2. Better Security. Both notifying employees of the presence of spyware and having spyware itself is likely to improve cybersecurity. Employees that know that they are being watched are far less likely to visit prohibited sites or click on “frowned upon” materials while using company equipment. Further, in the event there is a breach due to social engineering tactics, the software may be able to determine when and where the intrusion occurred and mitigate damage.

3. Weed Out Bad Employees. With the ability to take screen shots of individual employee computers and monitor key strokes, employers may be able to determine which employees are “stealing time.” For example, an employee that is strictly paid for data entry activities should not have several hours of inactivity. For employees who have more analytical tasks however, such tactics will not be as effective.

4. Lower Overhead & Flexibility for Performers. Just as poor performers can be identified, autonomous workers and over-achievers can also be recognized. Certain employees may thrive in remote work environments and no longer require (or desire) physical office space in the future. Such workers may want the flexibility to work from home for family reasons or relocate without having to leave his/her current employment. Knowing that he/she can be trusted to work remotely allows the employer to free-up office space for a new income-generator, while keeping a valuable employee.

5. Watch for Intellectual Property Theft. Whether intentional or not, many employees commit intellectual property theft as they exit one company for another opportunity. Taking previously prepared research memorandums, marketing strategies, or chemical process information, none of these acts of theft are novel and unfortunately, often occur prior to the employer receiving the traditional “two weeks’ notice.” With digital monitoring, an employer can see if an employee is searching a folder on the network that is unrelated to his/her position and downloading materials therefrom.

With an array of software options and legal protections, digital monitoring is a smart option for employers of telecommuters. Email for additional information or questions.

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