It is no surprise that employers use surveillance–mostly of employees' company-issued email and cell phones–to monitor their employees' productivity. For years, companies have been putting employees on notice in their policies that the workers should not have any expectation of privacy when using the companies' systems. Any number of employees have been disciplined for spending hours surfing the Internet or making personal calls on their company-issued equipment during work time.
Many employers also use surveillance to monitor the substance of employees' communications. A 2007 study found that of the 43% of companies that monitor email, 73% use technology tools to automatically monitor email and 40% assign an individual to manually read and review email.
The latest development is the increasing use by employers of automated surveillance, including algorithms, to monitor emails and telephone transcripts. JP Morgan Chase & Co. recently announced that it plans to roll out a program by 2016 that would use data points to identify certain rogue employees before they go astray. According to published comments by its head of regulatory affairs for Europe, multiple inputs, including whether workers skip compliance classes, violate personal trading rules or breach market-risk limits, will be inputted into the company's software with the intent of refining those data points to help predict patterns of behavior. A number of the world's largest financial institutions, including Goldman Sachs and Credit Suisse, reportedly have been deploying similar analytics tools to analyze digital traffic on their systems to identify and expose employees who may be rogue traders or SEC rule violators.
While much of the automated surveillance appears to be directed at forecasting inappropriate employee conduct in the investment banking and asset-management spaces, it is easy to foresee predictive monitoring being used by employers to monitor for conduct or communications that may suggest an intention to engage in harassment or workplace violence. With surveillance on the rise, employers should ensure that they continue to comply with any laws (whether federal, state, or local) that may limit their ability to conduct certain monitoring.
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