The Watchful Eye Of An Employer Can Invade The Employee’s Privacy.
Employers can be liable for secretly placing a video camera in an employee‘s office, even if the employer does not view any of the video. An employer must control his watchful eye and use it in limited circumstances.
A California employer, who operates a residential facility for abused children, placed a camera in an office to determine who was accessing pornographic websites at night. The camera was activated at all times in the office. The employer told a few employees about the camera, but not the female employees occupying the office, because the employer feared that these talkative employees may inform the perpetrators. While the camera was activated, a female employee who occupied the office, on occasion, closed the door, pulled down the shade to show her coworker how she was recovering from child birth. The employer was tagged with invasion of the employees' privacy. It did not matter if the employer viewed the videotapes or not. The fact that the employer had access to viewing was enough to invade the employees' invasion of privacy. The employees had an expectation of privacy that when the door to their office was closed, images of them in the office would not be transmitted.
Employer video surveillance is permissible in widely accessible areas because there are little expectations of privacy. For example, a room in a janitor break room was found to be permissible because the room was readily accessible to others. Jails are another place where the expectation of privacy is low. In a Sacramento jail, money was missing from a jail release office. A camera was installed to focus on the safe and the cash register area. The officer used the office for playing cards, working on his checkbook and his fantasy football league. The court held that the hidden camera was not unconstitutional because of the diminished expectation of privacy in a jail. The expectation of privacy is also low in bars and cafes. However, bathrooms have a higher level of privacy. In California, a trucking company employer videotaped the rest room through a mirror to detect drug use of its driver employees. This was deemed impermissible.
What does an employer do to prevent a lawsuit for invasion of privacy as a result of improper video or audio taping in the workplace?
1. There should be strict and well-reasoned controls on video and audio devices. The use of any audio or camera devices for surveillance should be limited in a workplace. Videotaping must be justified on the facts and the industry and surveillance should be limited to a specific purpose.
2. The employee manual should state that employees have no expectation of privacy in their office and that there may be video or audio taping at any given time. This employee manual warning is similar to the non privacy warning that employees' receive about emails and computer usage. If an employee needs to undress this should be done in the restroom, where an employee has the highest level of privacy. Courts have found that videotaping in restrooms is impermissible.
It is understandable that employers have to limit their liability and need to be watchful of criminal activity or other illegal activity. However, employees do have privacy rights. Employers must strike a delicate balance and make well-reasoned decisions, in light of employees' right to privacy, before undertaking a secretive watchful eye.
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ABOUT THE AUTHOR
By Elizabeth A. Moreno, Esq. a Los Angeles employment attorney, who represents and guides employers through treacherouse rivers of employment litigation and compliance.