USA: Can Employers Use Artificial Intelligence and Data Analytics to Track Remote Workers?
Authors: Todd R. Dobry and Taylor M. Napoli
Notwithstanding federal, state, and local privacy and cybersecurity laws that may apply, employers may generally use artificial intelligence, data analytics, and other software and technologies to track remote workers. Employers and their IT professionals should take a holistic approach when evaluating available technologies and data sources to identify the systems, data, and metrics that are most appropriate, and effective, for accomplishing their needs. By properly designing and monitoring these technologies, employers can successfully minimize the potential liability stemming from a myriad of issues associated with remote work and ensure compliance with company policies.
The COVID-19 pandemic has resulted in, if not required, the vast majority of businesses to adopt remote work and virtual workplaces as a means of operational necessity, and to promote the health and safety of its employees and clientele. With these shifts, employers have expeditiously looked to new and alternative means for tracking employee performance, monitoring productivity, and ensuring the security of their networks and computer systems. Artificial intelligence, machine learning, and data analytics are useful tools that employers can, and should, utilize to accomplish these, and other employment-related objectives.
To illustrate, a standard time-keeping application can serve as a virtual substitute for a physical timeclock. However, there are other methods for tracking employee performance, activity, and working time that can and should be considered if no other reason but to serve as a way to verify a remote employee’s time report. Employers that use a virtual private network (“VPN”) or remote/cloud computing can cross-reference a remote worker’s network connection and activity data to confirm the start and stop times reported on a separate timeclock application. Artificial intelligence and machine learning can be deployed to passively acquire login and other activity data that can help employers track employee work activity, and identify patterns, abnormalities, etc. on an enterprise-wide basis.
Employers and their IT professionals should take a holistic approach when evaluating available technologies and data sources to identify the systems, data, and metrics that are most appropriate, and effective, for accomplishing their needs. By properly designing and monitoring these technologies, employers can successfully minimize the potential liability stemming from a myriad of issues associated with remote work and ensure compliance with company policies. For example, potential liability stemming from irregular work schedules, overtime issues, and violations of work and leave-related restrictions, including prohibitions on non-exempt employees sending/reading work-related emails after clocking out or outside working hours.
Key Action Points for Human Resources and In-house Counsel
Of course, businesses should also consult with legal counsel to ensure that their employee monitoring and tracking abilities are compliant with applicable law, and do not result in unintended biases that could potentially cause a disparate impact on protected classifications.
