Is Video Surveillance Legal in the Workplace?
Whether you are an employer or an employee, it is important for you to know the laws and legal ramifications regarding video surveillance in your workplace. While there are some very obvious reasons that video surveillance would be needed in particular workplace settings (like pharmacies, banks, or point-of-sale departments), other places of employment may not require the same vigilance. Consequently, it would be to your benefit, whether employee or employer, to do your due diligence and be informed about the laws regarding video surveillance in your state.
Having knowledge of laws regarding privacy is a good place to begin. For the most part, employees should be protected and free from surveillance in any place where they would expect to have privacy or where they would keep their personal belongings. This would include, but not be limited to, the bathroom, locker room, or break room.
If an employer does put cameras in privacy-protected places, in some states, and fails to notify employees about video surveillance, then they are leaving themselves open to legal action for violating privacy laws. It is also of utmost importance that employers do not misuse any data that they collect during monitoring. (If you, as an employee, feel that your privacy rights have been violated, it is best that you seek legal advice from your state department of labor or an employment attorney licensed in your state.)
It’s worth noting that the recording of oral communication is almost always prohibited by federal wire-tapping laws regardless if an employer thinks that they have a legitimate reason for recording. Most of the time employers are required to inform employees if they are recording audio.
“Legitimate Business Reason”
For employers to use video cameras to monitor employees, they are required to have a legitimate business reason for doing so. State privacy laws determine what is considered legitimate, so it is important to be informed about your state’s specific limitations and allowances. Including information about video surveillance in the employee handbook can help employers direct employees to written language concerning their company’s policies. Making your employees aware of the video surveillance ahead of time may also disperse any negative feelings about being “spied on.” Some states even require that everyone involved in the “taping” is aware and shows consent.
At places of business where most of the work takes place in public, it makes sense for employers to have video surveillance, especially where monetary transactions take place, or where goods are kept on shelves. This is a scenario where there is an obvious legitimate business reason for having video surveillance. Having cameras to prevent theft or monitor how employees interact with the public would probably be expected by employees. This may not be the case for employees who work in cubicles at an accounting office or at a tech company, for example.
In less public workplaces, employers may have different reasons for videotaping employees. Some employers admit that they want some level of video surveillance that their employees are aware of in order to increase productivity, monitor access in regards to personal client data, discourage bad behavior such as sexual harassment, and dissuade from distractions such as social media or internet browsing on company computers and phones.
Employers can make a good argument for this type of video surveillance because they are the ones liable if sexual harassment is happening in their office or if an employee is alleging a hostile work environment. If employees know that they’re being monitored, it is likely that they will be less inclined to exhibit unacceptable behavior and more inclined to complete tasks and increase productivity.
Employers should consider how video surveillance affects their company morale when deciding where and how to monitor.
“Protected Concerted Activity”
The most explicit limitation on employee surveillance and monitoring that appears in federal law regards union organization events and solidarity marches. When employees are participating in these types of events hosted by union organizations, it would be best to not conduct any surveillance in order to remain in accordance with the federal law. When engaging in union activities, workers are believed to be exercising their right to “protected concerted activity” and therefore should be lawfully free of video surveillance. This law applies to employee gatherings that occur with or without a union.
However, the airing of a personal gripe is an example of a instance that would not be considered a “protected concerted activity.”
Consult a Professional
This area of business and law can be a complicated one. The outcomes of cases involving employee privacy are not always black and white, and the laws vary from state to state. If you are an employer and have questions regarding video surveillance in your place of business, definitely consult with a local business lawyer before taking any action. If you are an employee and you have questions regarding video surveillance at your place of employment, be sure to consult with a lawyer who can clearly define your rights.
Published May 8, 2021