Workplace Cameras and Surveillance
Many employers use cameras and video surveillance in the workplace, often to prevent theft or to monitor what employees are actually doing while on the clock. As long as the company has a legitimate need to film, the areas under surveillance are public, and employees know about the filming, these practices are likely to be upheld by a court. Because filming can implicate privacy rights, however, employers must be very careful not to cross the line.
Most employees don’t mind if retail establishments conduct video surveillance to guard against theft by outsiders. For example, there might be a video camera that tapes everyone who comes in the door or stands in front of the register. But what about employers that use hidden cameras to try to catch their own employees stealing? What about video surveillance of employees while they’re working? Or cameras in the bathrooms or locker rooms?
MORE THAN HALF OF EMPLOYERS USE VIDEO SURVEILLANCE
A 2005 survey by the American Management Association showed that more than half of the employers who responded use video surveillance at work to counter theft, violence, or sabotage. And 16% of the employers surveyed used video surveillance to monitor employee performance.
Whether filming employees at work is legal depends on state law and on what images are being captured.
State Laws on Workplace Privacy
Privacy is a cherished value for most of us, and state legislators know it. Most states have passed at least some privacy-related laws. Many of these laws are intended to protect consumers by, for example, limiting the ways companies may use personal information or requiring businesses to maintain the confidentiality of medical information or Social Security numbers.
Some states have also passed laws that deal with workplace privacy, including the use of cameras and video equipment. In California, for example, it’s a crime to install a surveillance mirror (one that can be seen through from only one side and looks like a mirror on the other side) in a restroom, shower, fitting room, or locker room. In Connecticut, employers may not operate surveillance equipment in areas designed for employee rest or comfort — such as restrooms, locker rooms, or employee lounges.
To find out more about your state’s workplace privacy laws, contact your state labor department.
Privacy for Certain Employee Activities
Even if your state hasn’t passed laws that specifically protect workplace privacy, you almost certainly can’t tape or film employees while they are doing certain things at work, such as using the restroom or changing clothes.
If there’s no state law that specifically allows or prohibits surveillance, courts determine whether an employee’s privacy has been violated by looking at two competing interests: the employer’s need to conduct surveillance and the employee’s reasonable expectation of privacy. An employee who is using the bathroom or getting undressed has a very strong, and very reasonable, expectation of privacy — and few (if any) employers will have a substantial enough need to justify filming employees doing these things.
Other activities may also be off-limits for employer surveillance. For example, employers may not secretly film or tape union meetings. Although some courts have ruled against employees who challenged employer surveillance of their activities while on leave for a medical condition or workers’ comp injury, these cases often involve fairly clear employee abuse of leave laws. (For example, one employee who was too ill to work was apparently well enough to spend the day at the gym; another took FMLA leave when his request to use vacation time was denied, then recuperated in Las Vegas.) A court could well rule differently if an employer’s surveillance strayed into private activities and effectively deterred employees with a legitimate need for leave from exercising their legal rights.
If you have questions about the legality of your business’s surveillance policy, you might want to consult with an attorney. To locate an employment law attorney in your area, visit Nolo’s Lawyer Directory, where you can view information about each lawyer’s experience, education, fees, and perhaps most importantly, the lawyer’s general philosophy of practicing law. By using Nolo’s directory you can narrow down candidates before calling them for a phone or face-to-face interview.
by: Lisa Guerin, J.D.