A work environment is the setting, social features, and physical conditions in which you perform your job. It can affect your well-being, relationships, collaboration, efficiency, and health. Some aspects of a work environment are the physical environment, company culture, leadership style, communication patterns, and team dynamics. There are different types of work environments such as traditional, remote, flexible, and hybrid.

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Avoiding Holiday Legal Entanglements

It’s the happiest time of year – except for employers facing the potential of a religious discrimination lawsuit from employees due to holiday decorations, gift exchanges, and other festivities.

While it may seem Grinch-like, such lawsuits are not uncommon. Just a few months ago, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Shekinah Baez against her former employer, Pediatrics 2000. According to the New York federal court complaint, Pediatrics 2000 violated Title VII by denying Baez a reasonable accommodation for her religious beliefs and terminating her because of her religion.

A Jehovah’s Witness, Baez was instructed to plan the company’s 2018 holiday party. The EEOC alleged that Baez’s employer knew that her religious beliefs prevented her from attending a party for another religion (such as a Christmas party) or attend a party that involved drinking or dancing.

During the planning of the party, Baez learned that it would have holiday-themed decorations and entertainment that would make it inappropriate for her to attend, the EEOC said, such as dancers wearing sexy outfits and encouraging the employees to dance. Although other employees were excused from attendance for reasons unrelated to religion, the complaint accused Pediatrics 2000 of refusing Baez’s religious-based request to skip the bash and instead fired her.

That case is ongoing, but there are some ways for employers to avoid becoming a defendant in a similar action.

Title VII prohibits employers from discrimination based on religion and requires them to “reasonably accommodate employees’ sincerely held religious practices” unless it will cause the employer an “undue hardship.”

During the holidays, concerns about religious discrimination can arise in a host of situations, including the context of requests for time off. A Muslim employee may ask to have a break scheduled after sunset during Ramadan when fasting ends, or a Christian worker on the night shift may seek a night off for Christmas Eve mass. Applying the mandates of Title VII, that means employers should generally accommodate reasonable requests for religious observance unless it would cause an undue hardship.

To help reduce complications with time off, floating holidays might be a good option for some employers. This type of excused absence provides employees with the option to take time off for religious observances that they believe in without being required to take time for holidays they do not observe.

Office décor can also be an issue. The U.S. Supreme Court has actually spoken on the legality of holiday decorations. In 1989, the justices ruled in County of Allegheny v. ACLU Greater Pittsburgh Chapter that trees and wreaths are secular symbols, while decorations like a menorah or a creche send a religious message. The EEOC has adopted this position in its Compliance Manual.

Although that ruling applied to a public employer, leaving private employers with the leeway to endorse a religion and display religious symbols in their workplaces, employers may prefer to avoid any potential issues with holiday-neutral decorations – think snowflakes or candy canes – instead of setting up nativity scenes in the conference room and break area.

Employees interested in decorating their own space raise similar concerns. Prohibiting employees from displaying religious-themed holiday decorations in their own workspace could form the basis of a religious discrimination claim, but other employees working nearby could also be offended by an overt religious display. Employers should be careful not to suppress religious expression if the employee decorates their own personal workspace that is not visible to the public and doesn’t imply the employer’s endorsement of the religion.  

Many companies have done away with the annual holiday party for a variety of reasons, from cost to inappropriate behavior by employees to concerns over inclusion. But for those that decide to celebrate the end of the year with their workers, proceed with caution.

To avoid problems, make sure that the party is a voluntary event. Jehovah’s Witnesses don’t celebrate holidays, for example, so requiring an appearance could constitute discrimination. Do not tie the party to a specific holiday and don’t schedule the celebration when it might conflict with a religious observance (such as the night Hanukkah begins).

Food can be tricky, so offer a variety of choices that include vegetarian options as well as items that can meet halal and kosher dietary needs. If alcohol is offered, be sure that nonalcoholic beverages are stocked as well. Similarly, any employer-sponsored gift exchanges should be entirely optional and not holiday-specific – avoid the “Secret Santa” moniker.

A case out of Arizona provides a cautionary tale about many of the dangers of the holiday season for employers. Marcy Rich sued her employer for creating a hostile work environment due to religious discrimination.

Rich, who is Jewish, alleged that her supervisor placed crosses on invitations to a mandatory company holiday party and hired carolers who sang songs with Christian lyrics (like “Christ our Lord”). The supervisor – a born-again Christian – told Rich it was inappropriate to decorate her cubicle with cutouts of a dreidel and a menorah and “Happy Hanukkah” cards.

The employer filed a motion to dismiss the suit, arguing that Rich’s claims were related to Christmas activities, not religion. But the court disagreed.

“This argument lacks merit,” the Arizona federal court wrote in Rich v. Arizona Regional Multiple Listing Service, Inc. “Title VII defines the term ‘religion’ to include ‘all aspects of religious observance and practice, as well as belief.’”

Keeping this principle in mind, employers can strive for a happy holiday season.

Planning ahead for calamity days

Hurricanes. Snowstorms. Wildfires. Although the events differ based on where an employer is located, such natural disasters pose uniform questions about how to handle potential closures and payment to employees who may not be able to make it into work because of extreme weather or other forms of emergency. 

Sometimes called “calamity days,” such disruptions pose practical problems – Should we close the office? Can people work from home? – as well as legal ones.

Employers need to establish a written policy for calamity days with an aim toward setting expectations with regard to emergency situations. The policy should begin with a definition of the term, such as “the closure of an office by reason of hazardous weather conditions, law enforcement emergencies or disease epidemic.”

The definition should be tweaked depending on the nature of the employer’s business and the geographic location, possibly including the events that will trigger a closure (a specific snowfall amount, a declaration of emergency by government officials or an electrical outage or loss of heat, for example).

Other policy details should include how employees will be contacted and informed in the event of such a day, whether and how employees will be paid for calamity days and instructions on how a worker should proceed if he or she cannot make it into the office.

In terms of legal considerations, several federal statutes come into play.

The Occupational Safety and Health Act’s promise of “safe and healthful working conditions” applies to all national employers with one or more employees. The statute places the responsibility to protect employees from unreasonable danger in the workplace (including natural phenomenon) on the shoulders of employers. Employers should keep this requirement in mind when making decisions about asking employees to come into work in the event of severe weather conditions or other emergencies.

What about paying employees for calamity days? The analysis begins with the Fair Labor Standards Act. The Department of Labor has stated that if employers close for less than a full workweek because of inclement weather or a related emergency, employees need to be paid their normal salary. Closure for a full workweek or more relieves the employer from paying exempt employees.

If an exempt employee elects to take time off under such circumstances, the employer may require the use of vacation time or other paid leave or deduct from the worker’s salary if they don’t have any paid leave remaining. This scenario often presents itself as a snowstorm that results in schools or day care providers closing, requiring parents to remain home with their children even though the employer remains open.

For non-exempt employees, different rules apply. Generally speaking, hourly employees do not need to be paid if they do not come into work, even if the employer closes the business because of an emergency. A partial closing, where an employee reports for work and the employer later decides to halt operations, does require payment for the hours worked.

Adding to the calculus: state laws, which have varying requirements. Some states may require compensation for non-exempt employees in certain circumstances, such as reporting time pay laws or jurisdictions that have “secure” or “predictable” scheduling laws. Many of the state and local laws do feature exceptions for extreme weather scenarios or other emergencies, however.

Employers also have the option to permit employees to work from home (where possible) or pay employees for such days. Although not legally required, these options can cement a better relationship with workers.

Even after a natural disaster ends, employers may face tricky issues.

The Americans with Disabilities Act provides that workers who are physically or emotionally injured as a result of a catastrophe may be entitled to reasonable accommodation by the employer, as long as it would not place undue hardship on the employer’s business operations.

Similarly, the Family and Medical Leave Act permits employees to take leave for a serious health condition caused by a disaster, not just for themselves but to care for a child, spouse or parent (such as the need to help someone who requires refrigerated medicine or medical equipment in a power outage).

Although extreme weather and emergencies will always present concerns, employers can minimize the uncertainty and unknowns of calamity days with some planning and organization.

Unconscious bias in the workplace

A new advertisement from Procter & Gamble features an African-American man going about his day. While walking down a street, a mother shuts her car window as he walks by; he garners suspicious glances while shopping and a couple elects not to sit near him in a restaurant.

The commercial, dubbed “The Look,” ends with the statement: “Let’s talk about the look so we can see beyond it.”

Intended to spur conversation about racial bias, the spot attempts to depict unconscious bias in daily life.

“Unconscious bias” refers to the stereotypes – both positive and negative – that exist in the subconscious and affect behavior. For employers, such stereotypes are particularly hard to handle as people often don’t even realize they exist, let alone that they are being used in the workplace.

Take resumes, for example. In 2012, scientists at Yale conducted a study of identical resumes that differed only in the candidate’s first name. They found that the candidate with the male name was viewed as more experienced and talented, more likely to get hired and to be paid more than the candidate with the female name.

Similarly, a study comparing identical resumes with either a “white”-sounding name or an “African-American-sounding”-name documented unconscious racial bias. The researchers found that the “white” names received 50 percent more callbacks for interviews, across occupations and industries.

Unconscious bias can take other forms, such as “similarity” or “affinity” bias, where people turn toward those with a similar background (individuals who attended the same college, for instance, or who grew up in the same town) or the “halo effect,” where one good thing about a person colors an opinion about all aspects of their personality – i.e., because she went to a good school, she is smart and trustworthy and deserves a promotion.

The opposite impact is known as the “horns effect,” when one negative trait (an employee was late to work one morning) impacts the perception of all characteristics about him (late to work means he is generally lazy and incompetent).

For employers, unconscious bias can limit the pool of candidates being hired and promoted, which in turn can decrease diversity, inclusivity and the growth of the company. Unconscious bias can also negatively infect the interactions between employees at a workplace.  

To combat unconscious bias, employers can begin by raising awareness and starting a conversation about the issue. A few other tweaks can help reduce the opportunity for unconscious bias to arise. Employers can consider a switch to “blind” application forms that eliminate gender, age, religion or ethnicity so that such factors are less likely to come into play for applicants.  

Another option at the hiring stage would be adding more decision makers. By getting more than one person involved in the hiring process, the chance of different opinions and perspectives could open the door to more candidates and move away from the assumptions of just one person. Widening the net when recruiting and making personnel decisions accountable (by requiring people to explain the reasoning behind rejecting a candidate or promoting one individual over another), also help.

For existing staff, employers can continue the conversation about unconscious bias and institute training. Formal mentorship relationships where the employer partners up junior employees with more senior workers – and not ad hoc mentorships, where individuals tend to seek out those with similar backgrounds – can also improve the representation of different perspectives. 

The hot trend in legal agreements: Weinstein clauses

The #MeToo movement has triggered a sea of change with regard to sexual harassment in the workplace, including a new trend in legal agreements.   

Dubbed the “Weinstein clause,” the new addition to the standard roster of representations and warranties in a sales agreement focuses on a company’s knowledge or awareness of accusations of sexual misconduct against its executives and managers.

For example, if Company A decides to purchase Company B, the practice has always been for the soon-to-be acquired company to disclose any information about its financial situation as well as ongoing litigation or threats of lawsuits, and represent that it has complied with certain laws. Issues like allegations of sexual misconduct were not previously part of the consideration.

Now, in the wake of the disclosures of decades of alleged sexual harassment and abuse by former Weinstein Company CEO Harvey Weinstein, a new clause has appeared. Company B is now being asked to represent to Company A that individuals holding leadership positions have not been accused of sexual misconduct and that Company B has not entered into a settlement agreement related to sexual misconduct.

A typical clause may read: “To the Knowledge of the Company, (i) no allegations of sexual harassment have been made against (A) any officer or director of the Acquired Companies or (B) any employee of the Acquired Companies who, directly or indirectly, supervises at least eight (8) other employees of the Acquired Companies, and (ii) the Acquired Companies have not entered into any settlement agreement related to allegations of sexual harassment or sexual misconduct by an employee, contractor, director, officer or other Representative.”

In some cases, Company B has been asked to put some of the purchase price in escrow for a period of time to cover costs shouldered by Company A in the event allegations of sexual misconduct arise after a transaction. Other clauses feature a time period going back several years, often past the actual statute of limitations for claims based on the conduct at issue.

A review of agreements involving public companies by Bloomberg revealed the clauses are being used by companies in a host of industries, from real estate to hospitality to entertainment to healthcare. While the use of the clauses was at first limited to large deals, they are now being found in deals of all sizes.

A variation on the Weinstein clause is also making its way into employment agreements. Companies have reportedly started to change their contracts with executives to be more explicit about sexual harassment and misconduct with regard to termination for cause, in the hopes of reducing (or eliminating) severance pay or the acceleration of stock options when a high-ranking employee is asked to leave.

Previously, cause for termination was generally limited to triggering events such as conviction of a crime.

In addition, companies are asking incoming executives to affirmatively represent that they have not been the subject of a sexual harassment claim, reached a settlement agreement involving allegations of sexual misconduct and/or engaged in harassment or misconduct.

The updated employment agreements serve a two-fold purpose: to create an incentive for executives to avoid such behavior and to protect the company in the event the executive does engage in sexual misconduct.

Allegations of sexual misconduct are now a significant business risk to companies, as evidenced by the drop in $3.5 billion in value to shareholders of Wynn Resorts after sexual harassment allegations surfaced against Steve Wynn; Weinstein’s production company, valued at $200 million, filed for bankruptcy as the claims against him mounted. 

Whether in an employment agreement or sales deal, the so-called Weinstein clauses demonstrate the concrete effect of the #MeToo movement that continues to play out for employers and businesses, with greater scrutiny on culture, diversity, sexual harassment claims and preventative measures.

Harassment vs. workplace bullying

What is the difference between workplace bullying and harassment?

Bullying and harassment often feature similar behaviors, such as offensive remarks or physical aggression. Workplace bullying is generally recognized as repeated, unreasonable and unwelcome behavior directed at a specific employee (or multiple employees) involving a power imbalance that results in psychological or physical harm.

Harassment, on the other hand, triggers legal protections. By definition, harassment involves a protected characteristic – such as gender, race, religion, sex, color, disability, age, genetic information or national origin – and is actionable under either federal law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act, and/or state law, which may include other categories (including sexual orientation and gender identity).

The legal protections under such laws do not cover all potentially harmful behavior. In the 1998 decision of Oncale v. Sundowner, the U.S. Supreme Court noted that Title VII, for example, is not “a general civility code” that prohibits “all verbal or physical harassment in the workplace.” Instead, such statutes are intended to protect the categories of individuals specified in the laws.

One typical illustration of a workplace bully involves the “equal opportunity jerk” who is generally rude and inappropriate to all of his or her subordinates for a variety of reasons that are not based on a protected category. A supervisor who bullies using gender-neutral language or behavior does not violate state or federal law; nor does a manager who singles out a particular employee because of a personality conflict or a disagreement about how the job should be performed.

Harsh criticism, threatening physical gestures and insults based on intelligence (calling employees “stupid” or “incompetent”) are textbook cases of workplace bullying that are not actionable under federal or state law. 

In practical terms, that means that workplace bullying is legal, although efforts have been made to enact anti-bullying laws. The Workplace Bullying Institute drafted model legislation called The Healthy Workplace Bill, and a version of the bill has been introduced in 30 states and two territories. For example, Massachusetts lawmakers recently considered Senate Bill 1072, legislation that would have banned all “abusive conduct” against employees, even if it wasn’t based on a protected characteristic.

To date, no jurisdictions have enacted the measure.

While workplace bullying remains legal, it doesn’t mean that employers should turn a blind eye to such behavior, which has been documented to have a negative impact on the workforce. Employers can provide protections that the law does not, by establishing anti-bullying policies with guidance on how victims of bullying can report incidents and with applicable penalties for employees who violate the policy.

How to Deal with Difficult Employees

You imagined the freedom of being your own boss is exhilarating, didn’t you? You started your own business with the thought that you wouldn’t have to deal with jerk co-workers and bosses. When I use the term “jerk” I am referring to toxic attitude/behavior or incompetence… or both!

True, you don’t have to deal with the jerk boss, but since you are the boss, guess what? You are in the unenviable position of dealing with a jerk employee. Or not. You can let things slide and avoid having to deal with the situation, but chances are that employee will drag everyone else down or even drive them out. Remember the days you were an employee and the lazy co-worker you had to pick up the slack for during a huge project? Or the manager that belittled you to the point of jumping ship? And no other manager was immediately stepping in to support you? Yes, you’re well aware of the dangers of letting things snowball down a steep hill, plus it takes up too much of your time and mental energy.

You also think if you discipline the employee, you’re probably going to be perceived as a jerk boss. Nice, huh? Even if you have an experienced manager or HR person handling employee issues, their main capacity is to serve as a witness and you will still need to head those dreaded meetings especially if it comes down to terminating an employee.

Before you start wondering what you did in a past life to deserve this karma, let’s change up the traditional thinking on disciplining employees.

The old-fashioned escalation of consequences: progressive discipline (punishment)

Progressive discipline is a euphemistic name for what I nicknamed Dante’s Inferno 2.0: The Four Levels of Employment Hell. It’s characterized by a series of three meetings using a negative, threatening tone while explaining the problem which carries increasingly severe consequences and eventually culminates into the fourth meeting terminating the employee. Here’s how it generally goes:

  • Identify problem behavior to employee during a “corrective action” meeting.
  • Tell employee to cut it out/step up without much guidance on how to do that.
  • Document the conversation in your own records and if it’s the second meeting, document it in writing for both parties and include “failure to correct blah blah blah… may result in further disciplinary action up to and including termination” verbiage.
  • Tell employee, “Sign here.”
  • Second meeting: Go back to first bullet point and start again.
  • Third meeting: Suspension.
  • Fourth meeting: Termination.

That’ll show ‘em. Umm, no. Deep down you know it’s like telling someone to calm down in the middle of a heated argument which tends to have the opposite effect. (Just try saying that to any teenager.)

The employee might actually shape up for a bit, and in a few cases it might work. But as you’ve likely observed before, chances are the undesirable behavior will creep back in. The behavior might change but the motivation to change isn’t coming from a true desire to take responsibility and improve. To be fair, if you were on the receiving end, would you have a cheerful outlook on your job if you were threatened with losing your job?

Then what? A second disciplinary session, maybe suspension for the third and final written warning, and then hasta la vista, baby? To add insult to injury, this (ex) employee writes up a lousy Glassdoor review three years later calling you a jerk boss.

If there was a different and more positive approach with a higher chance of sustained improvement and increased mutual respect, wouldn’t you jump at the chance?

Progressive approach: coaching

Coaching involves active participation by the employee. It doesn’t pit manager against the employee and the employee is treated with respect, not threats. It takes the approach of making a positive assumption that the employee will want to resolve the problem: Now, most employees would want to stop doing the things that drag everyone and everything else down. Often, the employee may not even be aware of the effects on others. It’s fairly simple, actually:

  • Describe problem with examples and then describe how it impacts the rest of the company and its employees. Start your private conversation with, “I noticed…” instead of “You are…” so that it doesn’t seem like finger pointing.
  • Discuss goals and potential solutions as a coach on the same team.
  • Offer encouragement and help to overcome barriers to the employee’s success. You never know what might be happening behind the scenes with the employee’s personal and professional life.
  • Meet on a different day to discuss progress. If the employee doesn’t eventually improve to the level of performance that the company requires, then it is probably best for the employee to move on.

When coaching the employee, it might be hard to be encouraging when you’re grinding your teeth into powder out of frustration, but you have to remember this is a person with a life outside of the work setting… a real live person with friends, family, personal issues, etc. Focus on the problem, not the person.

Ask if the employee sees the situation the same way you do to help you both get on the same page. Don’t use subjective phrases like “attitude problem” because it sounds so personal, judgmental and vague. Definitely not helpful. Don’t believe me? Tell those teenagers I mentioned earlier that they have an attitude problem and watch the eye rolling commence.

If it does come down to terminating employment, make sure you have a witness like a manager or preferably an HR person. You might want to give the employee the option to resign. (Check with your legal counsel and government resources to make sure you are in compliance with employment laws specific to your workplace location.) Make it short, to the point and make sure you don’t give the impression that your decision is not final.

Keep in mind that you may get the eye rolling no matter how encouraging you are as some employees just won’t change regardless of approach. They might be a Negative Ned and be super sensitive to the slightest correction, then twist your words around to sound like you were a bully and still end up calling you a jerk boss on Glassdoor.

But that’s okay. Just make sure you preserve their dignity by keeping information confidential, even if your name is being dragged on social media. You knew being your own boss was going to be a challenge in ways you didn’t expect, but if it was easy, everyone would run their own business, right?

A Policy Regarding Holiday Decorations…

As the Second Circuit Court of Appeals has aptly stated, “no holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” Before decking the halls, employers should consider the location of holiday decorations. Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another. For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive. Therefore, employers who wish to decorate the workplace should use non-religious, winter-themed decorations such as snowflakes, snowmen, candy canes, holly, and gingerbread houses.

Since non-religious decorations are permissible, there is always a debate over whether a Christmas tree is a religious symbol. While a decorated tree may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is generally a secular nonreligious symbol. This view was also adopted by the EEOC. Thus, employers may include Christmas trees among their decorations even if an employee objects. Nevertheless, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace. Thus, even if you have a tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Another albeit much more risky approach to holiday decorations is to include religious and nonreligious decorations representing a diverse set of cultural beliefs. In determining whether a public entity’s holiday and seasonal display that attempts to include all types of religions and beliefs conforms with the Establishment Clause, federal courts consider three factors: (1) whether the display is noncoercive; (2) whether the display does not give a direct benefit to religion in such degree to establish or tend to establish religion; and (3) whether the display conveys a message to the reasonable observer that the combined display was an effort to acknowledge cultural diversity. (See American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler)

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question. Prohibiting employees from displaying religious holiday-themed decorations in their own workspaces may give rise to claims of violation of free speech and religious expression. Also, because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations, or if it is visible to the public in a way that implies the entity’s endorsement of a religion.

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

The legalities of monitoring employees online

As a general principle, employers are legally permitted to monitor their employees online during business hours. Keeping a close eye on workers can help maintain company confidentiality, limit workers from surfing the web on company time, and ensure the prevention of harassment.

But such monitoring does come with caveats, as well as risks.

For example, screening employee email on the employer’s network may be permissible but may require advance notice. In states such as Connecticut and Delaware, laws are in place that require employers to provide prior notice before electronically monitoring employees. A union contract may also place certain limits on monitoring and public-sector employees may have some rights under the Fourth Amendment with regard to unreasonable search and seizure.

Federal law can also come into play. Although the Electronic Communications Privacy Act (ECPA) generally prohibits the monitoring of electronic communications, it contains a “business purpose exception” that permits employers to monitor the electronic communications of workers if the company has a “legitimate business purpose.” The statute also allows monitoring with consent and many companies do this by including such permission as part of the onboarding process for new employees before granting access to the company’s networks or systems.

Another wrinkle: third-party communications. States such as California and Illinois mandate that all parties to a communication provide consent to its interception in transit. For employers, that means providing notice to recipients of employee emails and obtaining their consent before scanning a message from a friend or third party. Many companies post a notice on the company’s website and/or include a statement in employee emails that all messages are subject to monitoring and any response implies consent with the employer’s practices.

Even with all these issues, monitoring emails may be more straightforward than focusing on employee social media accounts. The Stored Communications Act (SCA) addresses the situation of accessing electronic communications stored by a provider (such as Gmail or Microsoft), as distinct from an employer accessing emails on its own system. Under the SCA, employers can be liable for the unauthorized access and disclosure of electronic communications in storage on corporate servers of a provider.

Further, roughly half the states ban employers from either requiring or requesting a worker to verify a personal online account like a Facebook profile, blog or Instagram or to log on to their social media account. While technology is available for employers to get around these laws (using keystroke logging software, for example, or taking screenshots), some of the information being monitored by an employer could itself be protected – such as union organizing activities under the National Labor Relations Act, attorney-client communications or in some states, geolocation data.

Mobile devices add another layer to the analysis. For workers using employer-provided mobile phones or devices, the employer has the right to legally monitor use from contact lists to photos and videos to Internet visits and emails. As for bring-your-own-device (BYOD) situations, the terms are generally dictated by the employer’s BYOD policy, but this is an emerging area of law and therefore murky.

All of these legal considerations are centered in the United States. Companies that operate outside the U.S. borders will have international law to contend with as well, notably the European Union General Data Protection Regulation (GDPR) and regulations found in its member states. As a general matter, EU law and the GDPR offer employees a greater level of privacy than that found in the United States. Last year, the EU’s highest court did rule that companies can monitor employee email – if workers are notified in advance.

Perhaps most importantly, employers should recognize that like all things related to technology, the legalities of monitoring employees online are constantly evolving. Being able to adapt to changing laws, regulation and technology will keep employers on their toes.