Employers commonly use video surveillance for safety, security, loss prevention, and employee productivity monitoring. But employers’ legitimate business interests in protecting assets and safeguarding the workplace must be carefully balanced with employees’ reasonable expectations of privacy. As the definition of workplace privacy continues to develop, employers must be conscious of the evolving legal risks of workplace monitoring.

Applicable Laws

Workplace video surveillance is governed by each state’s privacy laws. Courts generally focus on two elements:

• the nature of intrusion upon reasonable privacy expectations; and
• the employer’s motives, including legitimate business justifications.

Because no bright line test determines whether an employee has a reasonable privacy expectation, courts have considered the physical layout of the area in which surveillance occurs, its relationship to the workplace as a whole, and the nature of the activities commonly performed in such places. At one end of the spectrum are settings in which work or business is conducted in an open and accessible space, within the sight and hearing not only of coworkers and supervisors, but also of customers, visitors, and the general public. At the other end are areas in the workplace subject to restricted access and limited view, and reserved exclusively for performing bodily functions or other inherently personal acts.

In the middle are common areas employees use that are not open to the general public. Courts have held that visibility by others or the fact that others have access to a particular space does not automatically remove all expectations of privacy. Courts also recognize a reasonable expectation of privacy as to an employee’s exclusive workspace, such as a private office, desk, or file cabinets containing personal matters not shared with others workers. Thus, employers must consider carefully whether a particular office setting is “private” before installing surveillance equipment.

When courts consider an employer’s motives and business justifications for using video surveillance, they closely scrutinize any policy on which an employer relies to defeat an employee’s privacy expectations. Courts have roundly rejected surveillance measures conducted for socially repugnant or unprotected reasons such as harassment, blackmail, or prurient curiosity. Yet courts have generally found in favor of employers that rely on legitimate business objectives and limit the viewing of the video and resulting knowledge only with those who legitimately have a need to know.

Therefore, employers should ensure that the video surveillance is supported by a legitimate business justification, that policies are narrowly tailored, and that employees understand they have no reasonable expectation of privacy in the areas that the employer intends to monitor.

Labor Relations

When an employer has a collective bargaining obligation with a union, it generally may not unilaterally change a term and condition of employment without bargaining.  The National Labor Relations Board (NLRB) has held that an employer’s installation and use of video surveillance cameras is a mandatory subject of bargaining, and that an employer violates its duty to bargain when it installs video surveillance cameras in the workplace without bargaining with the union.

Employers must also make sure their video surveillance does not interfere with its workers’ right to organize and improve working conditions. In a recent decision, a National Labor Relations Administrative Law Judge instructed an employer to cease and desist from:

• Photographing and videotaping employees engaged in workplace marches and rallies on and/or near its property;
• Creating the impression that its employees’ union and/or protected concerted activities are under surveillance; and
• Interfering with, restraining, or coercing employees in the exercise of their rights.

Consequently, employers should not use video surveillance to target, or create the impression of targeting, employees engaged in protected concerted activity.

Avoid Video Cameras that Record Sound

Employers should use caution in conducting audio recordings in the workplace. If the video surveillance includes sound recording as well as video, the employer must comply with federal and state wiretapping and eavesdropping laws. For example, most states will require the consent of one or all parties to any recorded conversation.

Takeaways:

• For each area in which the company intends to conduct video surveillance, the company should document its legitimate business reasons for using video surveillance.
• If applicable, employers should notify the union of its intent to install surveillance cameras.
• Employers should provide clear and specific notice to employees that the employer intends to use video surveillance, the areas which may be monitored and the legitimate business reasons for using the same, such as through signage.
• The employer should adopt a written policy reserving the right to monitor the workplace with visible and hidden cameras. This written policy should be included in the employee handbook  and require each employee’s written consent.
• To avoid potential violations of federal and state wiretapping and eavesdropping laws, employers should avoid video surveillance that captures sound, or conduct a state-specific and federal legal analysis of this issue.
• Employers should not use video surveillance in bathrooms, locker rooms, areas designated for expressing breast milk, or other areas in which employees have an expectation of privacy.
• Access to recordings should be strictly limited to individuals with a need to know and, when appropriate, law enforcement.

Employers must not use video surveillance to target employees engaged in protected concerted activity.