Key Takeaways

  • Outlines key considerations for businesses using productivity management and monitoring platforms – such as, Teramind, ActivTrak, and Insightful – and whether their use may require a CCPA risk assessment.
  • Identifies the specific CCPA risk assessment triggers most relevant to such productivity technologies.

Productivity management and monitoring platforms have become a fixture of the modern workplace—particularly for remote and hybrid workforces. These tools can track application usage, keystrokes, website visits, active and idle time, and even capture periodic screenshots of employee screens. Some platforms go further, using artificial intelligence to generate productivity scores, assess engagement levels, and flag behavioral anomalies. Businesses subject to the California Consumer Privacy Act (CCPA) and deploying this type of technology, should carefully consider whether a risk assessment is required before or during that use.

The first question is always whether the CCPA applies to the business at all. If the business has not yet made that determination, our comprehensive CCPA FAQs is a helpful starting point. Assuming the CCPA applies, the next question is whether the specific processing activity at issue presents a “significant risk” to consumer privacy—the standard that triggers the assessment obligation.

Our earlier posts on CCPA risk assessment basics discuss when the CCPA risk assessment requirement applies and the general requirements for conducting and reporting a risk assessment. This post focuses specifically on productivity management and monitoring platforms.

What Do Productivity Management and Monitoring Platforms Do?

Modern productivity platforms vary considerably in their capabilities and configurations. At a minimum, many log which applications an employee uses and for how long. More sophisticated deployments capture screenshots at regular intervals, record keystrokes, monitor email and messaging communications, and track time spent on specific websites or documents. AI-enhanced platforms layer on behavioral analytics, producing output that can characterize an employee’s work patterns, predict disengagement, or rank individuals against their peers.

The breadth of data collected—and the degree to which it is processed automatically to draw inferences about individual employees—is precisely what makes these platforms significant from a CCPA risk assessment perspective.

Which CCPA Risk Assessment Triggers Apply?

The updated CCPA regulations, which became effective in 2026, identify specific processing activities that require a risk assessment. Businesses using productivity management and monitoring platforms should evaluate at least three of them:

First, the regulations require a risk assessment when a business profiles a consumer (which includes employees and contractors) through “systematic observation.” The term “systematic observation” is defined broadly to include “methodical and regular or continuous observation,” and expressly covers “video or audio recording or live-streaming” and “technologies that enable physical or biological identification or profiling.” Periodic screenshots, continuous application logging, and keystroke capture may fall within this definition. “Profiling” itself is defined to include “any form of automated processing of personal information to evaluate certain personal aspects… relating to a natural person,” specifically including analysis of “performance at work,” “reliability,” “predispositions,” and “behavior.” A platform that generates productivity scores or behavioral profiles may fall within this definition.

Second, to the extent a productivity monitoring platform uses automated decision-making technology (ADMT) to make or meaningfully contribute to significant decisions about employees—such as decisions about compensation, employment opportunities, or similar matters—a risk assessment may be independently required on that basis. Businesses should carefully examine whether the platform’s output is used in any formal or informal employment decision-making process.

Third, if the platform processes any “sensitive personal information” as defined under the CCPA—such as health information (e.g., inferences about mental health from behavioral data), or biometric data (e.g., keystroke dynamics used for identity verification)—that processing could independently trigger a risk assessment requirement. The regulations include a narrow exception for certain human resources functions such as payroll and benefits administration, but businesses should not assume that exception is broad enough to cover behavioral analytics or performance profiling. Also, remember that the CCPA excludes certain categories of personal information including protected health information covered under the Health Insurance Portability and Accountability Act (HIPAA) and medical information under the California Confidentiality of Medical Information Act (CMIA). Importantly, however, not all health and medical information is covered under these laws, and could be covered by the CCPA.

Other Federal and State Laws to Consider

The CCPA is not the only federal or state law to consider when deploying performance management and monitoring platforms. To fully address compliance, the business needs to take into account, among other things, the regulatory environment of the business, the data collected by the platform, and the features of the platform. By way of example, the platform could trigger laws regulating biometric data, the recording of conversations, and the safeguarding of health information.

What Should Businesses Do?

Businesses that have deployed—or are considering deploying—productivity management and monitoring platforms should begin with a thorough inventory of what data the platform collects, how that data is processed or analyzed, and what outputs or decisions flow from that processing. Where the platform involves systematic behavioral observation, AI-generated productivity profiles, or ADMT that contributes to employment decisions, a CCPA risk assessment should be considered.

For the procedural requirements of completing a risk assessment—including the required contents of the risk assessment report and the certification obligation to the CPPA—Part 2 of our risk assessment series provides relevant information.  

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.