Legal aspects of using employee monitoring software

Legal Aspects of Using Employee
Monitoring Software
By Maryna Shynkaruk, Analytical Writer,
NesterSoft Inc.
June 2015
www.worktime.com

Introduction
2
Employee Computer Monitoring is a very sensitive area. There are many questions to
consider when implementing employee monitoring software in the workplace. Such
software deals with the data related to the employee’s whole working days, which might
uncover some personal information if used improperly. That is why it is important to pay
attention to the legal aspects of the employee monitoring.
The topics of this e-book are:
 What are the legal regulations for the employee computer monitoring?
 How to implement computer monitoring software in compliance with the law?
 What is on the market?
 What are the Spying Features and the Performance Monitoring Features?
 How to choose proper monitoring software?
 All the answers are in this E-Book by NesterSoft Inc.

Types of Employee Computer
Monitoring Software
3
There are lots of various types of employee computer monitoring software on the
market. All the software can be categorized into two major types: Performance
Monitoring Software and Spyware or Spying Software, which are completely different
types of software and have diverse business purposes. Most of the software on the
market offers both types of features: performance monitoring ones and spying ones.

Spyware or Spying Software
4
Spyware or Spying Software is such monitoring software, which collects information that
may include personal or sensitive data.
Sensitive Personal Data means information or an opinion about: racial or ethnic origin,
political opinions, membership of a political association, religious beliefs or affiliations,
philosophical beliefs, membership of a professional or trade association, membership of
a trade union, sexual orientation or practices, criminal record that is also personal
information, health information about an individual, genetic information about an
individual that is not otherwise health information, biometric information that is to be
used for the purpose of automated biometric identification or verification, or biometric
templates. » (By Kate Lucente and John Townsend in ‘Data Protection Laws of the World’,
May 2015).

Performance Monitoring Software
5
Performance Monitoring Software is focused on performance monitoring only. Such
software does not deal with any personal, sensitive data and does not support any spying
functionality (Read below in How To Choose Proper Monitoring Software). In other words,
such software does not offer any spying functions.
For more definitions refer to the Definitions topic of this book.
So, now comes the question: “What are the spying and performance features?”
Below in this e-book we offer an overview of spying and performance monitoring
features available on the market today (Refer to Monitoring & Spying Features topic).
Monitoring & Spying Features
Here are the common features that are offered by the employee computer monitoring
software suppliers on the market:

Attendance Monitoring
Login/Logout Monitoring
Is it spying feature?
NO
These functions are not spying
ones as no personal or
sensitive data is monitored (for
more information refer to the
next column of this table
Is it Performance Monitoring?
YES
Monitored information is:
employee login name, computer
name and time (login in/out
time). Attendance monitoring is a
necessary function to monitor
performance, as poor attendance
affects performance level
negatively. Employee login name
is open information as well as
computer name.
6

User Login Name Monitoring
NO
YES
employee’s system login name
(this name is open information,
usually created based on the
employee’s last and first names).
This is necessary information for
performance monitoring, as
employee’s system login name is
required to understand whose
performance is monitored.
7

Computer Name Monitoring
NO
YES
computer name, which is
required to understand if a
computer is used for business
purposes. This is open
information, that usually
belongs to the employer.
8

Active Time Monitoring
Idle Time Monitoring
NO
YES
employee’s login name, time.
This data is required to see
when and for how long
employees are being active or
idle during working hours.
9

Website URL Monitoring
NO
YES
employee’s login name, URL /
software name and path. It is
required to understand if
working time is used for
business purposes.
10

Social Network URL Monitoring
NO
YES
business purposes.
11

Software and Documents Monitoring
(Name and Path Only)
NO
YES
business purposes.
12

Keystrokes Logging
YES
Monitored data might contain
personal or sensitive
information. Any monitoring
function that involves content
monitoring might capture
private information.
NO
employee’s login name,
keystrokes pressed, which as a
result might provide information
about passwords or email / chat /
document / website form
content. Monitoring content is
not a necessary function for
estimating performance level,
there are other ways to do it
(refer above).
13

Content Monitoring: Screen Content, Email Content,
Chat Content, Social Media Content,
Website’s Content, Documents & Files Content, Print Content
YES
Monitored data might contain
personal or sensitive
information. Any monitoring
function that involves content
monitoring might capture
private information.
NO
employee’s login name, screen
/ email / chat / document /
website form content.
Monitoring content is not a
necessary function for
estimating performance level,
there are other ways to do it
(refer above).
14

Legal Regulations of Employee
Monitoring
15
Monitoring laws vary depending on the country or state, but despite all the
differences, there are certain laws that are common. These common laws form the
core principles that both monitoring software and monitoring process have to
comply with. In other words there is a set of the strictest rules that have to be
followed when applying monitoring in the workplace and when using computer
monitoring software.
For detailed information per country refer to Appendix 1.

Core Principles
16
According to Miriam Wugmeister (Comparing the U.S. and EU Approach to Employee Privacy) there are
seven principles to follow when applying monitoring:
Necessity, Finality, Transparency, Legitimacy, Proportionality, Accuracy and retention of data, Security.
Following these principles ensures that monitoring is done properly, stays business related and does not go
too far:
1. Necessity. Prior to monitoring, an employer must assess whether the monitoring in all its forms is
absolutely necessary for the specified purpose;
2. Finality. Data collected through the monitoring activity must respond to a “specified, explicit and
legitimate” purpose (for example, the security of the system) and cannot be processed for a different
purpose
3. Transparency. Monitoring should be transparent. The employer must provide clear and comprehensive
notice to employees about the monitoring;
4. Legitimacy. Employers may monitor employees only to safeguard their legitimate interests, while not
violating the employees’ fundamental rights;
5. Proportionality. Personal data processed in connection with any monitoring must be adequate, relevant,
and not excessive with regard to the purpose for which they are processed;
6. Accuracy and retention of data. Personal data must be updated and retained only for the period deemed
necessary for the purpose to be achieved, which generally is no longer than three months; and
7. Security. The employer must implement all appropriate technical and organizational measures to ensure
that any personal data are protected from alteration, unauthorized access, and misuse.”

Main Steps
17
Now, as you have an idea what performance monitoring and spying software are; also as you got
familiar with some core legal requirements and professional lawyers’ recommendations, we would
like to introduce the main steps for your employee performance monitoring journey:

Identifying Your Business Needs and Goals
18
When employers come to the idea of employee performance monitoring, they usually
have a need either to improve performance by the employees or they’d like to have a
better idea of how the employees spend their working days. The business goal here would
be to make the best performance possible.
So, here comes the question:
What should be monitored in order to respond to the above need and achieve
the goal?
Here we come to the point of choosing monitoring software.

How to Choose Proper Monitoring Software
19
The most important thing (according to the professional lawyers), when applying
employee monitoring in workplace, is to remember your business needs and goals. This is
what helps with choosing proper monitoring software; because in this way you have a
good understanding of which monitoring features should be in your monitoring software
and which ones are unnecessary.

Implementing Employee Performance
Monitoring
20
When implementing monitoring software in the workplace, professional lawyers
recommend:
 Stay business related
 Announce the fact of monitoring to the employees
 Provide clear monitoring policies
 Get consent from the employees

Quotations From Professional Lawyers
21
“Keep the monitoring work-related. If you offer employees a sound and positive business rationale for monitoring,
they are more likely to accept it as a legitimate work-related tool rather than an intrusion. Acceptable reasons
include monitoring to respond to a complaint regarding policy violations or to improve employee performance,
customer relations, and the quality of products and services.” (By Robin Thomas, from Issues to consider when
implementing an employee monitoring program).
“An employer may formulate an IT policy for inclusion in its employee manual, specifying that personal online
activity not related to work is prohibited during work hours (and/or on company IT equipment). Such a policy should
specifically prescribe activities for which use of the company e-mail system is deemed appropriate (if applicable).
The employer may require its staff to read the employee manual carefully and acknowledge, in writing, having done
so before being formally hired.” (By Ron Cai, Jojo Bai and Kevin Moore in Employee Online Privacy in China).
“As to the regulations, we suggest the company to clarify that no private matter shall be handled by the employees
in working time or no office equipment shall be used for personal matters; furthermore, it’s also suggested to
inform the employees that the company will record the employee’s using of the company computer, software or
phone call. Surely, the aforesaid regulation shall be contained in the Employee Manual.” (By You Yunting in
Infringement on Privacy, Comment on Enterprise’s Monitoring of Employee’s Chat, Bridge IP Law Commentary).
“To qualify, consent may be expressed, as in a written agreement, or implied from the circumstances, as when an
employee is informed that all calls and e-mail will be monitored for quality assurance or training purposes.” (By
Robin Thomas, from Issues to consider when implementing an employee monitoring program).

Monitoring – Good to Go
22
After completing all the required steps, like: Defining Goals, Choosing Software,
Announcing the Fact to the Employees, Providing Clear Monitoring Policies and Getting
Employees’ Consent you are ready to monitor your employees’ performance with
confidence and in accordance with the law.
From NesterSoft Inc.
By releasing this book as well as many other articles and materials we would like to
bring clarity to many various questions, related to the employee computer monitoring
area.
All provided information is intended to help with choosing your monitoring software
that is the right fit for your goals, company or department.
This book is basically the set of shortcuts that help you choosing and applying
employee computer monitoring software.

Appendix 1
Monitoring Legislations per Country
23
Argentina
Generally, in case of employees’ awareness it is legal to monitor employees’ computers,
laptops, cell phones and any other electronic devices (including its emails, keystrokes,
screens content) given by the employer (not their personal) in the workplace.
(According to Email and Internet Monitoring/Video and Physical Surveillance by Morrison
& Foerster LLP, GLOBAL EMPLOYEE PRIVACY AND DATA SECURITY LAW).
Australia
On the whole, employers have the right to monitor employees’ usage of company’s
property such as: computers, laptops, cell phones, Internet (including its emails) etc., but
workplace monitoring activities are widely covered by the Privacy Act, that’s why
employers have to inform employees about monitoring system.
(According to Workplace Privacy and Surveillance by Electronic Frontiers Australia).

Appendix 1
24
China
Local legislations give employers the right to monitor company’s property usage of
computers, laptops, cell phones and other electronic devices given to employees if last
ones are informed about the monitoring in the office.
(According to Employee Online Privacy in China by By Ron Cai, Jojo Bai and Kevin Moore).
European Union
In general it is legal to monitor employees in the workplace (computers, cell phones etc.)
with their agreement and awareness. But it’s important to follow next basic rules of
monitoring: Necessity, Finality, Transparency, Legitimacy, Proportionality, Accuracy and
Security.
(According to Data Protection at Work by European Commission).

Appendix 1
25
Indonesia
There are no specific labor regulations in Indonesia, which would prohibit employee
monitoring. But the local laws and regulations in Indonesia do not distinguish personal
data of an employee from personal data of other persons, that makes it possible to
implement the monitoring (data collection, use and processing) in the workplace only in
case employers follow some requirements: obtain an Electronic certificate from the
Ministry of Communication before implementing the monitoring; provide secrecy, totality
and the availability of the Personal Data; provide audit track records.
(According to Data Protection Laws of the World by Kate Lucente and John Townsend).
United Arab Emirates
Employers have the right to monitor their property (computers, phones and other
electronic devices as well as email’s content or keystrokes) used by employees in the
workplace, but only in case of employees’ awareness and agreement, especially when any
personal data pertains to an individual's private or family life. If employees do not give
their consent, then it is prohibited to monitor them during working hours.
(According to Data Protection Laws of the World by Kate Lucente and John Townsend).

Appendix 1
26
USA
Local legislations vary depending on the state, but in general, it is legal to monitor
company’s property usage (computers, phones and other electronic devices as well as
email’s content or keystrokes). Employers have the right to monitor their property, but
with certain limitations, which apply to employees’ private emails. Also some states
require from employers to notify employees about monitoring.
(According to Workplace Privacy and Employee Monitoring by Privacy Rights
Clearinghouse).

Appendix 1
Definitions
27
Personal Data means any information, which can be used to identify an individual.
Inappropriate or illegal use of such data may lead to breaching of the law.
Sensitive Data - is a type of personal data, which in turn is about an individual’s: health or
financial details, biometric information, religious preferences, racial or ethnic origin,
political opinion, sexual orientation, philosophical beliefs or criminal history. (According to
Data Protection Commissioner, Miriam Wugmeister’s works, Workplace Privacy and
Employee Monitoring, and many others). Incorrect use of sensitive data may cause legal
problems as well.
Performance Monitoring Software is such monitoring software, which keeps track of
information required to estimate performance level. Such type of monitoring software
does not collect or process any personal or sensitive data that might infringe on
individuals’ privacy.
Spyware or Spying Software is such software, which monitors, collects or processes
personal, sensitive data. Such way of monitoring might infringe on personal privacy.

Disclaimer
28
This e-Book provides general information only. This information is for general
understanding only and not to be used as legal advice. To receive professional legal
advice, please consult your lawyer.
WorkTime (worktime.com) - Respectful Employee Performance Monitoring
NesterSoft Inc.
July 2015

Legal aspects of using employee monitoring software

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