Intro to Workplace Surveillance
The use of surveillance cameras in workplaces is an ever-increasing trend for employers, and poses a significant legal challenge. Although historically many workplaces have used covert video surveillance, the cases considering the legality of using hidden cameras in the workplace continue to increase. While each case must be considered on its own facts, there are some significant trends emerging with respect to whether employers are permitted to surreptitiously record employees or anyone else in the workplace.
There are many reasons why employers may have a desire to record their employees or anyone that enters the workplace. Some may wish to protect their trade secrets or proprietary information, and covertly record employees for this reason. In addition, some may wish to help disprove employee claims of harassment, bullying, or other misconduct. Others wish to record and investigate misconduct they believe is occurring in their workplace.
As with all things , it is important to be sure that the decision to install such cameras is for legitimate and justifiable business reasons. The use of such cameras to spy on employees can result in significant liability and loss of employee morale.
The law governing workplace surveillance will be discussed in more detail later in this article, but it may be helpful to know the law in Alberta has established a four-part test to balance the employer’s interest in protecting its business with an employee’s right to privacy. In summary, employers need to determine whether:
Workplace surveillance will most obviously infringe upon an individual’s right to privacy. There are also a number of other rights that workplace surveillance may infringe, which include constitutional rights to freedom and security of the person, equality rights, and freedom from unreasonable search and seizure.
Laws and Policies
Workplace privacy laws can be broken down into three stages: the use of hidden cameras; the monitoring of voice conversation using hidden microphones; and the collection of personal data amassed by hidden cameras and microphones.
Federal Law
In addition to the federal wiretapping statute, which criminalizes the interception of electronic communications, there are various federal statutes on the subject of invasion of privacy in the workplace. For example, the Video Voyeurism Prevention Act of 2004 (VPA) does not specifically regulate the use of hidden cameras in the workplace but it does prohibit the photographing or video recording of "any person’s naked or partially nude body" when that person is in the bathroom or other location where he or she has a reasonable expectation of privacy. There is also the Family Educational Rights and Privacy Act (FERPA), which prohibits the disclosure of personally identifiable information from education records. Although neither of these federal laws are helpful in this context there may be other federal laws applicable to a specific industry such as the Health Insurance Portability and Accountability Act for companies in the healthcare field.
State law variation and overview
Federal regulations are not necessarily applicable to employees in the private sector. For state statutes, there is no uniformity among the various states in their regulation of hidden cameras. Some states regulate, while others do not. Conversely, California’s laws are the most employee-friendly in this area. California has both a privacy statute that applies to cable television and video recorder service, and a video voyeurism law that applies to the video recording of private bodies of government buildings. While these laws do not directly mention hidden cameras, it is indicative of the privacy concerns that are associated with them in the workplace. There is also another California statute entitled the Invasion of Privacy Act that applies to the recording of confidential communications without consent. Hidden cameras that record video but not audio in the workplace are not covered by this law. Lastly, the California Penal Code §§ 632 and 637 prohibit tapping of telephone calls unless the tap is installed with the permission of all parties to the communication. Likewise, some states are aligned with California, while others have no laws governing this issue. This disparity among states makes it difficult to speak to the legality of hidden cameras in the workplace without a review of the laws on a state-by-state basis.
Employee Privacy
Only when the privacy right or interest of the employee outweighs the employer’s right to best protection of its property, confidential information, premises, personnel, and operations MAY an employer legally conduct a workplace surveillance. (Doesn’t that sound pretty good? It’s the state of the law in a majority of states.)
Some courts have enacted balancing tests to provide some guidance about what motivates an employer to install surveillance and whether the monitoring is invasive to workers’ liberties. For example, in Stengart v. Loving Care Agency, Inc., 973 A.2d 386 (N.J. Sup. Ct. App. Div. 2009), the New Jersey Supreme Court held that the employer violated the privacy rights of the employee when it reviewed her e-mails on the employer’s property-issued laptop when she accessed personal communications.
The court found that the employer failed to adequately inform the employee of the possibility of the e-mails being monitored. Even though there was a notice on the employer’s policy manual requiring the employee to read all e-mails carefully and to assume the e-mails would be available to persons other than the employee, the employer did not adequately advise the employee that the policy would be applied to her work-issued laptop computer, nor did the employer direct the employee to its policy before giving her the laptop.
The court indicated that the employer had an important privacy reason to monitor its computers because they contained trade secrets and confidential information, and the employer’s duty to protect its computers and data on them outweighed the employee’s expectation of privacy. However, the employer’s failure to inform the employee of the policy, especially in light of the importance the employer placed on the policy, prevented the employer from having the minimum notice required to give rise to a clear policy that the e-mails would not be private and that the burden was on the employee to limit her use of the e-mails so they could not be retrieved. Thus, the court held that the employer had invaded the employee’s reasonable expectation of privacy in the e-mails contained on her work computer.
When Are Hidden Cameras Legal?
**EXCEPTION—WHEN HIDDEN CAMERAS ARE PERMITTED AT WORK**
Employers are allowed to place hidden cameras in the workplace in very limited circumstances. It is not permissible to place hidden cameras in areas where employees have a reasonable expectation of privacy. Such areas include, for example: restrooms, locker rooms, changing areas and breakrooms, unless the cameras are used to monitor employee activities in an attempt to catch an employee doing anything illegal or other improper behavior. The Illinois Court of Appeals has specifically held that the "employer does not have a legitimate interest in conducting surveillance of restrooms or locker rooms." Some states specifically limit when hidden cameras can be placed in bathrooms or other designated private areas.
Furthermore, most statutes require that the employees they seek to surveil are on notice that surveillance may be conducted. The California Penal Code, for example, provides that if an employer wishes to install surveillance equipment to observe, record or conduct surveillance on an employee, that employer shall give notice to employees that such surveillance may occur. The notice must be in writing, and the employer must keep the notification on file at all times.
The written notice shall include (1) the date of written notice, (2) the type of equipment that may be used, (3) the general purpose of the surveillance, (4) the notice shall specify whether cameras with audio recording capabilities will be used, (5) the locations where surveillance recording activity may occur, and (6) the date of the notice should correspond to the name of the person or company, not more than a year prior to the surveillance being conducted.
Even when a surveillance program is not "general" as required by the statute, that does not in and of itself render the surveillance illegal. The notice must be "specific and direct enough to give meaningful warning to the employee of the extent to which the employer may intrude on [those] activities." Because employees have a reasonable expectation of privacy in a bathroom, however, courts have required very specific and explicit notice to give the employees adequate warning as to the possible invasion into private activities.
Employer Liability and Best Practices
Employers have a responsibility to ensure that their surveillance methods and practices comply with all the relevant laws. Employers with notice of their surveillance obligations must also respect the privacy of their employees, typically by having written policies in place that disclose the information collected through surveillance is being collected and stored, the possible purposes for which it may be used, and the period of time such information will be retained. Employers who fail to meet their surveillance obligations may be liable for civil damages.
In addition to complying with applicable privacy legislation, employers are also subject to a general duty of good faith and fair dealing in their employment relationships and there is a relatively recent tendency in quasi-judicial decision making to acknowledge an implied right to privacy of employees . As a result, employers are urged to ensure that their surveillance measures do not violate the prevailing rights of employee privacy, such as the right to a safe work environment.
Employers with operations in Alberta should also be aware that the Office of the Information and Privacy Commissioner of Alberta publishes guidelines for workplace surveillance which they are expected to follow. This includes the requirement that employers advise employees when their conduct is being monitored by video, audio or GPS technology, if the monitoring is in areas where they have a reasonable expectation of privacy, can be implemented by reasonable means and is not for the primary purpose of monitoring employees for reasons unrelated to work activities.
Undeniably Illegal
It goes without saying that hidden cameras can be illegal when placed without permission in bathrooms or other areas where employees have a reasonable expectation of privacy. But what are the consequences for an employer when it places hidden cameras in the workplace unlawfully? An employer in such a situation is running the risk of becoming a headline itself, as well as facing other legal and financial repercussions.
Such unlawful activities can also be a violation of any existing collective bargaining agreement, and employers could find themselves at the bargaining table to explain why they engaged in such conduct. There is also always a possibility of an unfair labor practice charge being filed with the NLRB.
A case decided seven years ago involving Northwest Airlines illustrates the seriousness of the illegal surveillance of union activity in the workplace. The NLRB found that the employer had illegally installed surveillance cameras in its work areas, and that the cameras were "blatant overkill" because "no major labor unrest was imminent, and there was little or no evidence to indicate company property was endangered by union supporters." Northwest Airlines was required to pay damages to approximately 1,000 employees, under an agreement with the Justice Department. While the exact settlement figure was not made public, reportedly, the settlement included $5 million in damages under the Privacy Act, which only applies to federal entities, as well as approximately $10 million (yet to be finalized) in damages to the federal government. Prior to the agreement with Justice, the airline paid $80,000 to destroy the unauthorized surveillance equipment.
Regardless of the circumstances, employers cannot expect privacy to justify the placement of surveillance equipment in the workplace. Employers that believe they are acting reasonably in the pursuit of evidence to support disciplinary action will not necessarily put themselves in the clear. In fact, I would argue they are placing themselves in a precarious position.
Unlawful surveillance could also be the basis for a violation of the district’s non-discimination policy. Affected employees could, for example, file grievances, arguing that they were subjected to "surveillance, harassment, intimidation, coercion or interference" on the part of the employer.
Employers who suspect that an employee might engage in misconduct should not install surveillance cameras, but instead consult with counsel to determine the best way to address the situation.
Case Examples
In a world where privacy and surveillance go head to head, courts have been grappling with how much employers can monitor their employees at the workplace without running afoul of the law. The inherently private nature of restrooms compared to the public setting may support the argument that public policy should discourage inferences of consent when employees enter into an employer’s restroom facilities. The language of a Washington state statute, RCW 9.73.130(1), makes it a gross misdemeanor to "install, place, or use in any private place, without the consent of all parties legally entitled to consent to the use thereof, any device for observing, recording, amplifying, or transmitting the sounds or events happening in the private place . . . " because the focus of the employments laws in Virginia is public policy, the statute was not invoked in a Virginia court case. Other courts have distinguished between employees’ rights to privacy in the workplace and personal or private matters not related to work to set precedent that monitors are permissible in the workplace in certain circumstances. In Cf. State of Washington v. McWherter, 67 Wash. App. 947, 850 P.2d 527 (1993): "…[W]e reject the apparent attempt to extend the reasoning in [People v. Winfield, 36 Cal.3d 705, 206 Cal. Rptr. 176, 685 P.2d 643 (1984)] to permit such a right of privacy in any workplace. A right of privacy exists only in private places, such as a home or private restroom facility, and the mere fact that such places may contain items of personal nature (such as a person’s desk) is insufficient to justify a right of privacy in those items." In the matter of Donovan v. Pittman County Utilities, 870 F. 2d 1498 (8th Cir. 1989), the Eight Circuit upheld the dismissal of a lawsuit by several employees who contended that their employer’s use of video cameras to monitor employees at work constituted an unlawful search under the Fourth Amendment, which protects against unreasonable searches and seizure. The Court found that the concealed cameras placed above the employees’ work areas did not violate the Fourth Amendment "because they were not placed in a location in which the employee had a reasonable expectation of privacy."
Conclusion and Tips
Ultimately, hidden video equipment in the workplace can be legal or illegal, depending on a variety of factors, and controls already in place under federal labor and tort law with respect to chic employers-namely the NLRB and state employment law, respectively. In order to avoid violating workers’ statutory rights, employers should implement workplace surveillance systems (including video) in a manner that is consistent with Section 7 of the National Labor Relations Act, so that workers can’t infer from their implementation that their managers are warehousing the footage (and/or audio) for the purpose of surveilling union activism or stifling it . Employers should also ensure not to abuse their ability to catch employee misconduct, but use surveillance to catch unsafe or inappropriate behavior in the actual act, and not make it possible to watch people’s behavior retroactively (particularly in "private" or non-work areas). Surveillance should also be limited to necessary business purposes, and not to track employee union activism or habits, extracurricular activity, personal lives, or the conduct of non-employees, such as customers and visitors. In sum, before installing those hidden cameras, consult skilled employment counsel.