Video Surveillance Laws in the Workplace

Many companies use video to monitor employees in the workplace.

Many employers use video surveillance to curtail illegal activities by employees, including theft and drug use. However, employees may bring action against their employers for video surveillance under federal and state laws. Understanding these protections and how they apply to video surveillance monitoring in the workplace can help employees keep their privacy intact.

Electronic Communications Privacy Act of 1986

The Electronic Communications Privacy Act of 1986 (ECPA) is the primary federal statute, commonly known as the "wiretap law," governing video surveillance by employers, according to the Electronic Privacy Information Center. Most cases brought under this law involve wiretaps and monitoring of telephone and email communications. Silent video is not covered by the act. However, the ECPA covers the sound portion of videotape recordings. Employers may use video with sound to monitor employees under this act only if: 1) the monitoring occurs in the normal course of business or 2) the monitoring occurs with the employee's consent, according to attorney Perry Aftab.

Invasion of Privacy Common Law Tort

Although not all states recognize the Invasion of Privacy Common Law Tort, employees in states that do have used this tort to seek relief from video monitoring in the workplace. This law requires that plaintiffs be able to prove that they suffered an intentional intrusion that would be highly offensive to a typical, reasonable person, according to Aftab. Courts trying these types of cases must consider whether a person in the workplace has a reasonable expectation of privacy. Most courts have found that no such expectation exists with video surveillance, whether visible or hidden, if the space being monitored is public and open. The courts have been more divided in cases where cameras were hidden in areas, such as rest rooms and dressing rooms.

The Fourth Amendment

The Fourth Amendment, and state equivalents, can be applied to workplace video monitoring when the employer is a public agency, notes Aftab. Some states, such as Massachusetts, California and Florida, also apply the amendment to private employers. Under this amendment, people are protected from unreasonable search and seizure. To win such cases, employees must prove that there is an actual expectation of privacy and that the expectation is reasonable. Surveillance of public areas is usually permissible. However, the issue of whether monitoring of nonpublic spaces is allowed under this law remains unsettled.

National Labor Relations Act

To be considered a violation of the National Labor Relations Act, video surveillance has to catch protected concerted activities. This means that the surveillance can't be of union activity or meant to intimidate employees from engaging in union activities, according to the Electronic Privacy Information Center.

State Privacy Statutes

Some states, including Massachusetts, Connecticut and California, have enacted privacy laws that can be applied to workplace surveillance, notes Aftab. Connecticut provides the most employee protection by specifically prohibiting employers from using any electronic surveillance system to monitor areas designed for employees' personal use, such as rest rooms or lounges, according to attorney Lisa Guerin in an article published by Nolo.com.

References

• Perry Aftab: Monitoring Law
• Electronic Privacy Information Center: Workplace Privacy
• Nolo: Cameras and Video Surveillance in the Workplace