workPlaCeSurveillanCe: PrivaCy, ProduCtivity, andriSk labor & employment law Section
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Surveillance also creates heightened discrimination and retaliation risks. Under the“ convincing mosaic” framework recently recognized and applied by the Eleventh Circuit in a retaliation case, 1 inconsistent enforcement, selective monitoring, or post-hoc reliance on surveillance data may support an inference of discriminatory or retaliatory motive.
When monitoring intensifies after protected activity and discipline follows shortly thereafter, courts may view the monitoring itself as circumstantial evidence of retaliatory intent, particularly where productivity data is newly emphasized. Surveillance that appears designed to uncover a justification for a decision already in motion may suggest a search for pretext. Surveillance might also deter employees from engaging in protected activity, itself supporting a retaliation claim.
Surveillance algorithms and data also present evidentiary opportunities and pitfalls. Employers often assert that adverse actions were based on“ objective” system outputs rather than retaliatory intent. However, plaintiffs may challenge metric selection, whether standards shifted after protected activity, and whether standards were applied uniformly. Ultimately, while workplace surveillance technology is legal in many forms, its use is not without consequence. Employers remain responsible for how systems are applied and how monitoring data is utilized when making employment decisions. For practitioners, these cases demand close attention to the human decisions behind automated tools, as well as the timing of adverse actions, comparator evidence, consistency in enforcement, and whether automated data is selectively invoked to justify personnel actions. As surveillance becomes embedded in everyday employment decisions, so too does the legal risk that accompanies it. n
1
Ismael v. Roundtree, 161 F. 4th 752( 11th Cir. 2025).
Author: Amanda L. Biondolino – Amanda L. Biondolino, PLLC
M A y- J U N E 2 0 2 6 | H C B A L A W y E R
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