For as long as there have been employees and bosses to manage them, there has been workplace surveillance. From the foreman of a construction site, leering managers in a cubicle-filled office, and drill sergeants in a military line; it is a commonly held belief that monitoring workers is essential to keeping them in line. The advent of modern electronic surveillance systems has created a workplace environment in which the boss is always looking over your shoulder.

The ever-increasing sophistication of these electronic surveillance systems presents equal concern surrounding their use, as well as the effectiveness of these sometimes invasive systems. Privacy in the workplace takes many forms: it can be as simple as monitoring of e-mails and call logs, but it may also include sophisticated camera systems by which every movement, every served drink, and every service ticket is monitored, recorded, and analyzed.

Workplace surveillance gives cause for concern when employers are able to monitor personal correspondence, such as the content of messages and voice calls. In California, state law requires that both parties be informed that the call is recorded by a beep or recorded disclaimer. However, employers are required to stop the monitoring once it is realized that it is a personal call. It is unclear whether any currently available software is capable of discerning a personal call from a business related call, and what happens with the already recorded data. This means that the content of a phone call may need to be heard by an employer before they can make a determination that it is personal.

In the digital age, employers face increasing scrutiny from employees who, through social media, have been given more visibility than ever before. From expletive-laden comments on Twitter, to entire blog sites dedicated to criticizing their employer, consumers and employees alike have the ability to reach millions with the click of a mouse. It is important that employees, and their employers, are given clear guidelines to protect the interests of each party. To ensure that this extends across all industries and jobs, legislation may be a necessary part of the solution.

Companies see surveillance as a way to protect their interests. This may extend into the personal lives of employees by monitoring their social media usage, ensuring that nothing is said or done which may damage the reputation of the company.  Employers may also find ways around these laws by hiring third parties to monitor employee social media accounts for them. A number of employers have even fired employees for content they’ve posted online. Huffington Post, an internet news blog, has an entire section dedicated to people who have been fired due to posts on social media.

Although many believe that grievances aired off the clock and on their social media accounts are protected acts, they are likely not. The National Labor Relations Board found several instances of lawful terminations linked to social media “gripes”. Employees are subject to surveillance off the clock on their social media accounts and may face disciplinary action if sharing these ideas online. Legislation exists to protect employees in places such as Colorado from employer control of social media accounts. However, employees are still subject to any information which may be publicly available or leaked.

While employers may find it important to ensure they hire people who they believe will fit their image, it could be argued that employees should have the right to privacy, even if using company property to conduct personal business. Legislation keeping social media and personal e-mail account access from employers should be enacted to allow employees to maintain privacy. This is a reasonable expectation because countless employees use company devices to access personal accounts every day. As a result, social networking and electronic communication have become an important part of everyday life.

Aside from protecting digital information, employers and employees alike are increasingly concerned with physical security of employees. An FBI report released in 2014 details a trend of increased workplace shootings over the last seven years. Despite possible tax incentives for hiring convicted felons, employers may be held liable for workplace violence by knowingly retaining employees who have shown to have a violent criminal past. Because of this, many employers may feel an obligation to monitor to mental health and/or communications of their employees.

Monitoring the behavior and physical location of employees provides employers more control over what happens in the workplace. Physical monitoring may be successfully accomplished by video monitoring, as well as GPS tracking on vehicles both personal and company-owned. Understandably, these practices face varying degrees of resistance. Employees often feel entitled to privacy from their employers while off duty. While on the clock, however; courts have generally ruled in favor of GPS monitoring during work hours, regardless of vehicle ownership.

Privacy legislation can take shape in different ways than we might imagine. Recent legislation in Utah, HB0242, provides public employees with the right to a private room in which to breastfeed. The physical privacy afforded in this bill does not extend to private employees in the state, perhaps because of the burden it would put on businesses. Despite this, it may be in the interest of mothers across the country if such legislation was enacted to protect their right to privacy equal to their government peers.

Part of creating clearly outlined rules in regards to privacy in the workplace is the opportunity to create an environment which fosters trust and communication between the employer and the employed. Legislation requiring employers to clearly communicate surveillance practices within the workplace keeps both parties in check, and can help to avoid embarrassing situations. It also enables employers to create an expectation while employees understand what kind of information their employer may capture if they log into their Facebook on a company computer.

Employees should have a right to know when electronic surveillance exists in any form. This information should be disclosed fully and in an upfront manner, such as in an employee handbook. Certain states, such as Connecticut, have created legislation which ensures that employees are given this very kind of advance notice of any electronic monitoring in the workplace.

The rapidly evolving landscape of electronic surveillance requires that these issues are quickly addressed, and that it is done in ways which produce the most future-proof legislation possible. Questions of second use and data retention must also be considered beyond the simple collection of information in the workplace. Although it may be possible to create a compromise through negotiations between employers, employees, and clients, this doesn’t guarantee standards which are applied to every employer, or even every industry. Because of this, legislation may be necessary to provide a base level of protection and compromise for both employers and employees.

Legislation surrounding workplace surveillance must be carefully crafted to protect privacy and safety in favor of employees, while not crippling employers’ ability to maintain their brand image or the security of sensitive data.  Federal laws regarding workplace monitoring already exist, such as the Electronic Communications Act, 18 USC 2150, which allows for unannounced monitoring of business calls across state lines, similar to the aforementioned law in California. This law has the important distinction that an employer must cease monitoring when the employer realizes the call is personal.

Any legislation enacted must not prevent individual employers and employees from striking a balance which both consider favorable and beneficial. The goal of any legislation should lift the burden of these technologies from both parties and allow everyone involved to benefit from them, without being damaging to the reasonable interests of either.