In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding the use of video surveillance in the workplace and if there are any obligations to notify employees.
Q: We are a non-union food packager, based in Illinois, and have recently seen an increase in damaged product and safety incidents. Due to this uptick, we have decided to install security cameras in the production area.
What are the obligations to report and communicate this to the employees? Can I just post signs at all entrances to inform that surveillance cameras are in use, or are we required to have each employee sign a waiver?
A: For many years, it has been common practice for banks, retail stores, gas stations, and other employers that regularly interact with the public to use video surveillance to prevent theft and ensure security. But what if an employer wants to use video surveillance in the workplace to monitor the conduct and performance of its employees?
Video surveillance in the workplace may sometimes be appropriate, particularly if it’s being conducted by management. However, before an employer engages in any surveillance, it should carefully weigh what will be recorded and how the surveillance data will be stored and for how long.
Certainly, if some kind of crime or misconduct is recorded, the video could be subpoenaed by law enforcement or a defense attorney. And it’s critical that healthcare employers ensure that appropriate HIPAA protections and any other applicable privacy rules are in place.
Prohibition Against Use of Video Cameras
There’s no outright prohibition against using video cameras in the workplace, assuming cameras aren’t installed in a bathroom, locker room, or some other area where employees have a high expectation of privacy. Employers using surveillance cameras should be careful not to include audio in the recordings because that may run afoul of federal and state wiretapping and eavesdropping laws.
Generally, workplace surveillance is governed by federal law in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), similar state Wiretap laws, and common law protections against the invasion of privacy. The federal Wiretap Act generally prohibits the intentional interception of any wire, oral, or electronic communication so it would apply to any audio surveillance but not to video surveillance.
The federal Wiretap Act contains two exceptions to this prohibition:
- When at least one party to the communication performs the interception or has previously consented to the interception
- When the interception is by an employer with a legitimate business-related reason for the interception (the “business extension” exception)
A strong argument can be made that employees don’t have an expectation of privacy in common work areas, such as reception areas, break rooms, or conference rooms. However, if you decide to monitor employees with video cameras in those areas, or other private spaces (e.g., cubicles), you must have a legitimate business reason for doing so—for example, preventing employee misconduct, harassment, bullying, or theft.
There’s also no notice requirement for employers that use video cameras in the workplace. From a practical standpoint, however, it may be wise to inform employees that you’re using video cameras. Employees’ awareness that cameras are present may act as a significant deterrent to any misconduct and will provide a good defense to any claims of a right to privacy in certain work areas where cameras are used.
Do’s and Don’ts
It should go without saying that you should never use video cameras in bathrooms, locker rooms, or any other rooms where employees change clothes. Any video cameras installed in other areas of the workplace should be clearly marked in order to defeat an employee’s claim of an expectation of privacy.
You should also create a clear and well-defined policy on video surveillance, so there’s no surprise or confusion among your employees. In the rare circumstance that you need to use secret video cameras to catch employee misconduct or criminal activity, you should seek legal counsel and ensure that any secret recordings are as limited in duration and scope as possible.
The use of video cameras in the workplace can enhance security and prevent employee misconduct or bad behavior. However, you should be careful not to infringe on employees’ right to privacy, and you must have a legitimate justification for using cameras in the workplace.
Because of the potential for criminal and privacy claims, you should discuss this matter with your local labor law attorney.
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