Is my employer legally allowed to track where I go during work?

June 24, 2013 11:43 AM

I work a desk job in an office building. There are about 4 doors on our floor that require a keycard to access. One leads to a bathroom, the other leads to the kitchen, which has the coffee maker and water fountain. The other two go to other departments. My employer has notified me that they have registered a very high frequency of passing through these doors. They run reports on what keycards are used to open doors, and how often they are used. I drink a lot of water and coffee at work an urinate frequently, hence my passing through these doors. Can they legally do this? Can they punish me in any way? Obviously, I'm in the US.
posted by MisantropicPainforest to Work & Money (33 answers total)

IANAL. Yes they can track who goes in or out of the doors, and yes they can punish you. Your rights to privacy in the workplace are pretty limited.
posted by chrchr at 11:46 AM on June 24, 2013 [1 favorite]

Desk jockey in a key card/restricted access building here. In my experience, the answer to both of your questions has always been yes.
posted by divined by radio at 11:49 AM on June 24, 2013

If you're not at your desk, you're not working, as far as they're concerned.
posted by the Real Dan at 11:49 AM on June 24, 2013 [1 favorite]

They don't care whether you're going through doors. They care that you're not sitting at your desk. So make sure you have your job performance documented, independent of how much time you spend in the exact physical location where they expect you to be while performing said job.

"Hey, you went to the bathroom six times yesterday."
"Yeah, I drink a lot of coffee in between my completing all of my TPS reports on time and my updating of the XYZ database three days early."
posted by Etrigan at 11:53 AM on June 24, 2013 [8 favorites]

From a March Wall Street Journal article on the topic: "Lewis Maltby, president of the National Workrights Institute, an employee advocacy group, says current sensing technologies don't seem to violate employment laws. 'It's not illegal to track your own employees inside your own building,' he says, adding that the data could be helpful in improving firm and worker performance."
posted by Mr.Know-it-some at 11:54 AM on June 24, 2013 [2 favorites]

Personally, I'd recommend that you start looking for a new job that has more basic respect for its employees. It's one thing to keep this information around for security purposes ("who badged into the building Saturday night when all the computers went missing?"), but regularly running reports on your bathroom usage is sociopath.

That said, consensus looks like it's pretty much legal. If they fired or disciplined you for excessive bathroom use, it might be worth talking to an employment lawyer, but your best course of action is going to be to find a job that evaluates you on your performance, not your beverage intake.
posted by zachlipton at 11:57 AM on June 24, 2013 [56 favorites]

I'd kind of come out with it. "Yeah, I drink a lot and I pee alot, is that a problem?"

I'd also start looking for a new gig if they started getting weird about it.
posted by Ruthless Bunny at 11:58 AM on June 24, 2013 [7 favorites]

When I worked at a place with this kind of a setup, there was a general dissatisfaction amongst the staff. Someone proposed having everyone drop their card key into a punch bowl, and everyone take a different one, so that the company wouldn't know who was where, but AFAIK it was in that "frequently discussed, never implemented" category.

It's a shitty thing for employers to do.
posted by ambrosia at 12:00 PM on June 24, 2013 [1 favorite]

I see no reason why they can't track how you're spending your time while you're on the clock. I once had a boss that actually had us track bathroom visits for about a week, to see how often we used the bathroom, since he was thinking of renovating, and the only access to the bathroom would be through the conference room. (ugh) Note: I should have left that job then, not several years later!

Potential alternatives, if you think this is an issue - bring water/coffee with you, and that would decrease your access to the kitchen. I agree with Etrigan, though - it shouldn't matter as long as you're documenting your job performance.
posted by needlegrrl at 12:00 PM on June 24, 2013 [1 favorite]

You could suggest that they look at the total time away from your desk, rather than frequency of trips. That's going to be more relevant to them. 6 quick trips to the water jug could just add up to 15 minutes, while another employee might be making one or two trips (somewhere else) for a total of 45 minutes.
posted by amtho at 12:03 PM on June 24, 2013 [2 favorites]

Unpleasant, but probably legal. I'd bring my own coffee & water, just say that, yes, I go to the bathroom a lot. In my experience cardlocks don't pay attention to when you leave an area, so i might log my departure times from work.
posted by theora55 at 12:03 PM on June 24, 2013 [1 favorite]

If you can document a medical reason for the thirst/urination frequency, you can challenge the report/confrontation as a violation of HIPAA.
posted by thinkpiece at 12:04 PM on June 24, 2013 [7 favorites]

I have opted not to work for companies that do drug testing, and I would opt not to work for companies that do pee monitoring. We get to chose our employers.
posted by 256 at 12:05 PM on June 24, 2013 [3 favorites]

Response by poster: Thanks everyone. My job performance is great. I think that the people instituting the door monitoring policy are the higher ups, and the ones monitoring my performance are management immediately above me. And they don't care, but policy dictates that they have to inform me that my usage is high. Either way it is disrespectful, and rubs me the wrong way. Thanks.
posted by MisantropicPainforest at 12:10 PM on June 24, 2013 [1 favorite]

If you can document a medical reason for the thirst/urination frequency, you can challenge the report/confrontation as a violation of HIPAA.

HIPAA is a privacy law. You may be thinking of the ADA, which might be relevant if the bathroom breaks were related to a disability.
posted by insectosaurus at 12:13 PM on June 24, 2013 [7 favorites]

About 20 years ago one of those "Best Companies for Women" articles came out, with a companion "Worst Companies for Women" article, and the anecdote I remember is that at one of the Big 8 Accounting Firms there was a manager who would stand outside the ladies room and time how long women were in there doing their business. Even pre-internet that turned into a PR nightmare for them, and I can only imagine the social media bonfire that would happen today. Perfectly legal, perhaps, but not something that will foster employee loyalty or burnish the company's public image.
posted by ambrosia at 12:14 PM on June 24, 2013

I like the keybowl idea, could you try some other methods to silently protest the door tracking? Say, perhaps, place duct-tape over the latch so the door is always unlocked? How about propping the door open with a rubber stopper? Would that lead to a security issue?
posted by JoeZydeco at 12:18 PM on June 24, 2013

Say, perhaps, place duct-tape over the latch so the door is always unlocked? How about propping the door open with a rubber stopper?

Coffee and pee breaks are explainable in the course of regular working. Tampering with and/or circumventing security is a whole 'nother (wildly inadvisable) issue.
posted by dirtdirt at 12:24 PM on June 24, 2013 [8 favorites]

Inform them you will be happy to urinate into empty plastic bottles at your desk but they may want to give maintenance a head's up.
posted by nathancaswell at 12:25 PM on June 24, 2013 [30 favorites]

HIPAA is a privacy law.

Right. If the OP has a medical condition, and documentation from a doctor, they can't ask him to disclose the nature of that condition or the symptoms or treatments thereof.

If he were a blood-sugar monitoring diabetic or a breast-pumping new mother they would not be allowed to record the trips ... or even ask any questions, as long as he had the proverbial doctor's note (which can be vague).
posted by thinkpiece at 12:26 PM on June 24, 2013 [1 favorite]

Corporate cultures are different, YMMV, etc. etc. but... unless this is a truly routine thing (everyone receives a report quarterly, or whatever) I would be concerned. This seems like an odd metric to track closely unless there was some other concern such as performance, modeling behavior for underlings, etc.

Basically it sounds like a not very straightforward way for your management to inform you that you're away from your desk too frequently for their tastes. If they really didn't care, they wouldn't bring it up. If you are an at-will employee, yes, they can punish you.
posted by charmcityblues at 1:04 PM on June 24, 2013

Right. If the OP has a medical condition, and documentation from a doctor, they can't ask him to disclose the nature of that condition or the symptoms or treatments thereof.

This is not a function of HIPAA. The OP's employer, as an employer, is not covered by HIPAA.

Who Is Not Required to Follow These Laws

Many organizations that have health information about you do not have to follow these laws.

Examples of organizations that do not have to follow the Privacy and Security Rules include:

life insurers,
employers,
workers compensation carriers,
most schools and school districts,
many state agencies like child protective service agencies,
most law enforcement agencies,
many municipal offices.

This is not simply a matter of semantics. It would be deeply inadvisable to get fighty with your employer based on this faulty information. It also obscures one's real rights, or lack thereof. (I recently had someone try to tell me that their employer could not change internal drug testing policy without the agreement of all of the at-will employees.) For whatever reason, HIPAA has gathered a ton of faulty folklore about how many rights it extends to people.

ADA might cover a medical reason for needing to drink a lot, and subsequent urination, but only if the reason constituted a disability.
posted by OmieWise at 1:18 PM on June 24, 2013 [12 favorites]

I think they could be stepping in it:

Urinary Frequency

Epidemiology[1]

The prevalence increases with age and is more common in women. In the elderly it is very common in both sexes. Risk factors include hypertension, obesity and smoking.[2]

Even by monitoring this and telling people in tones of disapproval, I wonder whether they might be committing sex discrimination and age discrimination-- not to mention discrimination against pregnant women especially.

If there are any explicit sanctions associated with it, I'd wait for them to apply them to you and consult a lawyer.
posted by jamjam at 2:02 PM on June 24, 2013 [5 favorites]

You may be interested in reading Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time which, in addition to having a completely awesome title is co-authored by a law professor and a urologist and addresses some of the legal issues you are curious about.
posted by bbq_ribs at 2:17 PM on June 24, 2013 [15 favorites]

Next time they bring it up, suggest that they could improve efficiency by putting in additional water coolers and coffee makers closer to the work areas instead of making everyone have to travel to a central kitchen for basic refreshments.
posted by Jacqueline at 4:28 PM on June 24, 2013 [2 favorites]

(Basically, spin the number of trips you have to take to another area of the building into an indicator of a flaw in the workplace design instead of a deficiency in your own personal work habits.)
posted by Jacqueline at 4:32 PM on June 24, 2013 [2 favorites]

I don't know about legally speaking, but in jobs I've had where I was getting a lot of noise about things like this, I started questioning whether it was a work environment that was really worth staying in.

If you otherwise love your job, I agree that as long as your job performance is where it should be and can be documented as such, you're probably fine.

Any job where peeing a lot was a fireable offense despite otherwise acceptable performance is not a job I'd want to stay in, even if it was otherwise the best job ever.
posted by Sara C. at 5:55 PM on June 24, 2013 [3 favorites]

If you can document a medical reason for the thirst/urination frequency, you can challenge the report/confrontation as a violation of HIPAA.

HIPAA is a privacy law. You may be thinking of the ADA, which might be relevant if the bathroom breaks were related to a disability.


HIPAA actually does have provisions that prevent an employer-sponsored health plan and health insurer from discriminating against individuals based on a health factor (including medical condition or disability) in the context of eligibility and benefits under a health plan, but neither HIPAA nondiscrimination nor HIPAA privacy/security apply directly to employers (just the health plans, which are separate entities).

Also, an entity that is covered under HIPAA privacy can ask anything they want - they just can't disclose health information. But again, an employer isn't directly subject to HIPAA.

The ADA applies to employers, but the OP didn't say anything to indicate that he or she has a disability with the definition under the ADA. Not that he or she doesnt have a condition that would be protected (and possibly require the reasonable accommodation of unlimited beverages and bathroom use) but it's a stretch based on the facts in the question, "I drink a lot of water and coffee at work and urinate frequently."
posted by Pax at 6:15 PM on June 24, 2013

I'd get a copy of Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time as noted above and leave it on top of my desk in plain sight for a few days.

I think they might hesitate to bully you if they think you might figure out some way to stand up to them legally - most bullies back down when you stand up to them. If not, I'd move on.
posted by aryma at 8:57 PM on June 24, 2013

You could bring a thermos and a bedpan to your desk.
posted by ovvl at 9:44 PM on June 24, 2013

You don't say exactly what kind of a job you do. If it's generally set hours or a predictable workflow then your employer probably will want to drive marginal gains in productivity where it can because time is money. Savings made through productivity could mean not taking on an additional member of staff. It seems a bit creepy when it comes down to bathroom breaks but it's not unprecedented or unusual.

If the prevailing culture or work is not set hours or predictable (i.e. you may be required to put in substantial unpaid "overtime") then monitoring little stuff like how often people make coffee is poor form - it's really only there to be used when company or individual performance issues require you to analyse something specific.

You're sitting at or near the top of the list. The list, properly analysed, should be a proxy for time away from desk. How many times you move through doors is less relevant although perception matters and you can be sure someone will look at the data and wonder why anyone needs to go to the bathroom x times a day. The thing they should be looking at is utilisation - i.e. in a standard 8 hour working day the average person spends 46 minutes away from their desk. It should also factor in your overall working time. I have advised companies on utilisation rates as part of other work I've done and time management/tracking systems that look at raw utilisation or do not account for hours worked can be very misleading. E.g. - Person A has a 90% utilisation rate, but works 8 hours a day. Person B has an 80% utilisation rate but works 9 hours a day. Ceteris paribus, they work the same.

If this is process of looking at the data is new and likely to go away then the solution is not to be at the top of the list and to change your behaviour accordingly. Perception matters, and more so the less people up the chain don't know you.

If they monitor this stuff regularly and holistically and, fair play, they're pulling up some things to look at then you still have the option of changing your behaviour, going somewhere that is less intense or turning it into an HR issue. Speak to your boss or HR, explain that you do go to the bathroom frequently. Get an understanding of whether your working practices (time worked, performance) are otherwise OK and then get yourself ruled as an exception if possible. If you can medicalise the issue, even as vaguely as "I drink a lot of water for my health" then go for it.

If they're monitoring this stuff regularly but don't bother to do so holistically then move on. Pissing to some target number of bathroom breaks is no way to work. The caveat is, I think it is often a mistake when people in higher paid roles say things like "I get my work done" or similar because few ambitious companies want people who don't stretch, regardless of whether their performance is otherwise OK. And my experience is that often people who insist they "get their job done" overestimate their own performance and productivity (either in absolute terms or relative to their coworkers).
posted by MuffinMan at 2:37 AM on June 25, 2013

My guess is that telling you that "your usage is high" has more to do with discouraging you from (potentially) sharing your keycard than with any number of bathroom breaks per day. Provided that you do not work for crazy sociopaths who are overly interested in your bathroom habits.

If you look at it from a security perspective, the keycard systems are only useful if they actually match up 1:1 with people. If something goes missing, you want to be able to run the logs and figure out who was where at what time. That means you don't want people sharing cards.

If you suddenly see a single employee's card that's getting used much more than the rest, it might be a sign that the card is being shared, or the employee is up to something weird. (Or has been cloned, if they're even aware of that possibility; many companies aren't or won't admit it.) So someone -- perhaps the company that installed the system in the first place -- may have advised somebody in your company to periodically run a report to see if certain cards are being used more often than others and check to see that the usage is legitimate. Somebody got the first part of that instruction but doesn't really understand the second part. That's conjecture on my part, but it doesn't seem particularly hard to believe (i.e. I've seen dumber things).

So I'd just take the "high usage" report as an opportunity to say "yep, that's all legitimate usage by me, no problem" and go on with your life. If they follow up with some sort of comment that leads you to believe that they really are sociopaths interested in your bathroom habits, then I'd start getting your ducks in a row for a fight over whether that's a legitimate performance metric, etc., but in the absence of anything else it's probably better for you to give them the benefit of the doubt and just move on.
posted by Kadin2048 at 4:42 AM on June 25, 2013

And they don't care, but policy dictates that they have to inform me that my usage is high.

If they don't care, what's the problem? Sounds like their telling you is a way to intimidate you into obeying some unwritten rule. Does this information go into your performance review?

Can they punish me in any way?

Have you been threatened with any punishment? Has anybody else been written up for passing through the doors too often?
posted by Rash at 4:15 AM on June 26, 2013