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Is it Legal to Watch Your Employees? Considerations When Installing a Video Surveillance System at Your Office

A company’s use of video surveillance to monitor workplace settings is oftentimes a necessary and reasonable practice. Shoplifting, employee theft and safety concerns all provide valid reasons for monitoring areas within a company. Both federal and state laws provide for certain protections concerning employee privacy rights. These protections may in turn place certain restrictions on the use of electronic surveillance systems in the workplace.

Federal & State Laws

Based on data gathered by the American Management Association, an estimated two-thirds of companies within the U. S. use some form of electronic monitoring or surveillance. Federal and state laws regarding employee workplace rights set the guidelines for any form of surveillance or monitoring within a workplace setting. Many of the federal laws on surveillance and monitoring stem from the Electronic Communications Privacy Act (ECPA) enacted in 1986.

ECPA regulations address privacy rights for everyday citizens as well as for employees in their place of work. While these laws were originally designed to prohibit governments from invading peoples’ privacy, amendments were created to incorporate newer forms of technology, such as CCTV monitors, computers and internet communications.

Regulations affecting privately owned companies are for the most part set by each state government, though state laws cannot blatantly contradict any federal mandates. Specific regulations can vary from state to state on the types of images recorded and the settings where video surveillance can take place.

Video Surveillance Systems

Companies may use video surveillance systems for a variety of reasons. CCTV monitors may provide an added measure of security within different areas of a building. Monitors may also be used to prevent employee theft in areas where cash changes hands, such as around cash drawers or tills. The need for some form of surveillance monitoring under these circumstances means federal and state regulations may only apply in a limited range of circumstances.

For the most part, any instances of monitoring have to be done on a deliberate basis. This means, employers must make a deliberate attempt to notify employees regarding which areas are monitored and which areas are not. Laws do prohibit video monitoring in locations where employees expect to have a certain degree of privacy, such as restrooms or employee lounges.

Video Surveillance & Audio Taping

The Electronic Communications Privacy Act (ECPA) specifically lays out guidelines prohibiting wiretapping and audio recording practices. These regulations apply across the board when it comes to employee workplace rights. In effect, these laws prohibit any video surveillance monitoring that includes an audio recording component.

Companies do retain the right to use video monitoring to protect their interests; however employees still retain the right to file charges when they feel their privacy rights have been violated. For example, a law suit filed in 1999 against a Wal-Mart in Kentucky resulted in the jury awarding $20 million to four former employees for privacy violations. In this case, the store manager installed video surveillance in a backroom to monitor employees suspected of theft. The monitor included an audio device that happened to record personal conversations between the employees. The award was given on the basis of the audio component and also on the grounds that the store had an unwritten policy which allowed employees to claim, take or eat damaged goods.

Reasonable Expectations of Privacy

Even though no federal or state laws directly prohibit employers from installing CCTV/video surveillance systems, employees still maintain the right to have a reasonable expectation of privacy. As different employee roles carry varied privileges and levels of access throughout a company, management and human resources staff may want to consider privacy rights within the different job capacities to avoid potential lawsuit suits.

One such lawsuit related to employee privacy rights occurred in an Alaska case where a Safeway manager sued the company for videotaping him in his office. The company was found to have violated the manager’s “reasonable expectation of privacy” within the confines of his office.

Union Shops

Companies that employ union workers face yet another federal law regarding video surveillance in the workplace. The National Labor Relation Act requires union shop employers to obtain the consent of unions before installing a video surveillance system. Union representatives also have the right to negotiate where any CCTV monitor are located in the workplace. The National Labor Relations Act also makes provisions for union reps to negotiate what types of penalties a union worker will incur if caught engaging in misconduct on videotape.

Government Employers

Government sector employers are held to a higher standard than private sector employers when it comes to the use of video surveillance equipment in the workplace. Two statutes –the Fourth Amendment and the 14th Amendment- prohibit the “unreasonable search and seizure” of government workers which grants added protections for an employee’s right to privacy. Through the 14th Amendment, these protections extend to state as well as federal employees. Once again, these laws do not directly prohibit employers from installing CCTV/video surveillance equipment, but may provide employees with more leverage should a possible violation occur.