How Far Can Desktop Time Trackers Go – Legally?

Written by Asim Qureshi
By Asim Qureshi, CEO Jibble

According to The New York Times, around 60% of employers use tracking software to keep an eye on employee activities. This includes recording keystrokes, tracking time with screenshots, turning on webcams or microphones, and monitoring time spent on different apps and websites. Some managers have even gone a step further by saving records of staff phone calls, emails, or messages to assess their workers’ performance. To track all of this data, companies can use a range of tools, from mobile productivity apps, web monitoring software, GPS trackers, and, of course, trusty desktop time trackers.

Many companies go for desktop time tracking apps because they offer a much higher level of employee monitoring than, say, mobile or web time tracking apps. They also run natively on computers, making them faster and much more reliable.

And while there are definitely advantages to using this technology to know what your employees are up to and where those precious hours are going, just how much tracking and monitoring is too much? Is desktop time tracking even legal? Well, whether you’re an employee wondering about your rights or an employer looking to ensure you don’t overstep legal boundaries, this article will serve as your comprehensive guide.

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Is Desktop Time Tracking Really Necessary?

This is probably one of the first questions employees will raise when a desktop time tracking tool is introduced into their workflow. Some might think it’s unnecessary or even intrusive. But time tracking, especially on desktop, offers several advantages that can benefit both businesses and their employees, making it an indispensable aspect of today’s professional landscape.

On the employee side, time tracking can offer a clear and accurate record of work hours, ensuring every minute is accounted for and compensated accordingly. Knowing where work hours go can also give employees a more structured way of managing their time, leading to improved time management and productivity. 

On the flip side, employers gain several advantages from using desktop time tracking tools. These tools provide more comprehensive employee monitoring, allowing employers to have a clear understanding of their team’s productivity. They can see which apps or websites employees use the most and identify projects that may be falling behind, helping them resolve any issues and allocate resources more effectively. Additionally, accurate time tracking streamlines the payroll process, reducing administrative mistakes and ensuring that employees are paid fairly.

So, for the question: Is time tracking necessary? The answer would be a no-brainer, yes. With more and more workforces going fully remote or adapting a hybrid work setup, the need for time tracking and monitoring tools becomes even more significant.

Learn about desktop time tracking in greater detail through our comprehensive desktop time tracking guide.

What Can Desktop Time Tracking Software Legally Track?

Time tracking isn’t just legal in the US, in some cases, it’s also required. As per the Fair Labor Standards Act (FLSA), employers must maintain precise time records for all non-exempt employees. This ensures that employees are paid fairly and in compliance with labor laws. The method, however, for maintaining and gathering these time records is up to the employer.

If you’re using a desktop time tracking software, you probably know that it can track more than just time; some tools can also track:

  • How many mouse clicks are done per hour
  • Keyboard activity
  • What’s displayed on the computer screen
  • How long a computer remains idle
  • What apps and websites are being used and for how long, and so on

This may come as a surprise to some people, but tracking all of this is completely legal, according to the American Bar Association. There are, of course, some important considerations and legal limitations to keep in mind, and they can vary from state to state.

For instance, in Connecticut and Delaware, it’s mandatory for employers to inform workers about the specific monitoring methods being utilized. Meanwhile, in Colorado and Tennessee, employers must establish a written policy concerning email monitoring, which is particularly relevant due to its potential capture through screenshots. Additionally, Maryland, Illinois, and California enforce “all-consent” laws, necessitating employees’ explicit agreement for any form of electronic communication monitoring.

It’s important to note that monitoring employee activities is generally allowed only during work hours. Employers may also extend monitoring to employee-owned devices, provided they have established clear rules, such as “Bring Your Own Device” (BYOD) policies, explicitly stating their authority to monitor employees’ personal devices for work-related reasons.

Given the evolving landscape of regulations governing time tracking and monitoring, it’s advisable to check on US state labor laws applicable to you so you can ensure compliance and transparency within your organization. You can also review our comprehensive guide to further learn about legality of time tracking in the US.

When Does Desktop Time Tracking Become Illegal?

Although it’s generally legal for desktop time trackers to gather certain information from employee computers either through the app or third-party desktop integrations, there are some cases when desktop time tracking can cross the line.

Desktop time tracking becomes illegal when it violates an individual’s right to privacy or breaches established labor laws. While employers have the right to monitor employee activities during work hours, excessive or invasive tracking measures that extend beyond professional duties may cross legal boundaries. For instance, capturing personal communications sensitive information or monitoring employees during non-working hours without consent can constitute unlawful surveillance. 

In the case of a California employee, her former employer, Intermex, put an app on her work iPhone that kept running all the time and tracked her non-stop. When she raised objections and turned off the app, she alleged they terminated her employment. This information is from a lawsuit obtained by Ars Technica. Although this case involves a mobile tracking app, the underlying principle applies to desktop time trackers as well. Monitoring employees outside of their work hours and taking adverse actions, such as firing them, for raising their concerns can lead to legal and ethical concerns. 

It’s also important to note that using time tracking data to discriminate against employees based on protected characteristics, such as race, gender, or religion, is a clear violation of anti-discrimination laws. Time data also should not be used to harass or retaliate against employees who engage in protected activities, such as whistleblowing or union organizing. This right is protected under the National Labor Relations Act (NLRA).

Key US Workplace Tracking and Monitoring Laws

Employers are subject to different state and federal laws that govern workplace tracking and monitoring. While there is no single comprehensive federal law that addresses all aspects of workplace tracking, several existing laws and regulations provide essential guidelines and protections for both employees and employers.

Electronic Communications Privacy Act of 1986 (ECPA)

The ECPA is a key federal law that directly regulates how electronic communications can be monitored at work. It was created in 1986 when Congress updated the federal Wiretap Act. The original Wiretap Act mainly focused on listening to and monitoring spoken and wired conversations. However, the ECPA expanded these rules to cover electronic communications like email. And since desktop time trackers can capture email information through screenshots, this Act can also apply.

Two main exceptions allow employers to monitor their employees’ communications. The first is the “business purpose exception,” which lets employers watch over both spoken and electronic communications if they have a good reason related to work. The second is the “consent exception,” which allows monitoring as long as employees agree to it. It’s important to note that the consent exception isn’t limited to work-related communications, meaning a company can monitor personal electronic messages if employees agree.

Fair Labor Standards Act (FLSA)

The FLSA establishes standards that cover minimum wage, overtime pay, recordkeeping, and youth employment standards. It also requires employers to keep accurate records of non-exempt employee work hours. The FLSA doesn’t make it mandatory for employers to use any particular timekeeping system like time clocks or time cards. Employers can choose whichever method they prefer for tracking work hours.

National Labor Relations Act (NLRA)

The NLRA, also known as the Wagner Act, serves to uphold workplace democracy by granting employees in private-sector workplaces the essential right to pursue improved working conditions and representation without the risk of facing negative consequences.

As per the existing legislation, if an employer adopts new monitoring technologies as a response to protected activity or uses existing technologies to uncover protected activity, it is considered a violation of Section 8 of the NLRA.

Recently, the National Labor Relations Board (NLRB) has also expressed plans to strengthen provisions addressing the growing trend of employers utilizing various technological tools to manage their remote workforces. On October 31, 2022, Jennifer Abruzzo, the General Counsel of the NLRB, released a memorandum that zeroes in on the use of monitoring technology by companies to disrupt union organizing efforts. Abruzzo urged the Board to take more significant steps in limiting employers’ use of monitoring technologies for employee surveillance. She also suggested a new framework that would place the responsibility on the employer to demonstrate that their electronic management practices are carefully designed to address a valid business need.

How to Use Desktop Time Trackers Responsibly

Desktop time trackers are undoubtedly powerful tools that can boost productivity and help you manage your work more efficiently. However, like any tool, they should be used responsibly to ensure they serve their intended purpose without infringing on privacy or becoming counterproductive.

When using a desktop time tracker to monitor employee work hours and activities, keep in mind one word: Consent. Much of the legal framework concerning workplace surveillance revolves around consent. This is why it’s advised by legal experts that organizations should transparently inform their employees about the monitoring process and obtain written confirmation of their consent. This practice not only aligns with legal standards but also fosters a culture of trust and transparency within the workplace.

Aside from obtaining consent, another effective approach is leveraging the built-in privacy features that many desktop time tracking tools offer. Some might have features that allow employees to designate specific times or activities as private, ensuring that certain information remains confidential. They might also allow you to blur screenshots or notify users when they’re taken.

It’s essential to remember that responsible use of desktop time trackers is not just about adhering to legal norms; it’s also about fostering a work culture that respects employees’ rights, privacy, and well-being. If you want to further make the most of your desktop time tracker, try applying these eight desktop time tracking best practices.

Final Thoughts

It’s now clear that desktop time trackers can collect a significant amount of valuable data on employee work hours and activity, and in most cases, this is well within the boundaries of the law. However, as mentioned earlier, responsible use of these tools is vital. While the law allows for extensive monitoring, it also places a premium on consent, transparency, and respecting employees’ rights to privacy.

Being transparent about your time tracking and monitoring practices can make a world of difference if you decide to introduce desktop time trackers into you and your team’s workflow. Understand legal requirements for time tracking and monitoring that exist within your state. And as good rule of thumb, always ask for employee consent. All these measures will allow you to use desktop time trackers to improve workplace efficiency while ensuring you stay on the right side of the law.