Q&A: Electronic Surveillance at Work Often Illegal
Published by James Peters January 12th, 2007 in Privacy Issues, Q&AQ: There are rumors circulating at work that our boss is spying on employees with video surveillance. Is that legal?
–Private Eyes are Watching Me (CA)
A: The answer to your question is: it depends. Whether or not video surveillance at work is illegal depends largely upon the facts in a given situation. The main question is whether or not you have a “reasonable expectation of privacy” in the area that is being taped.
Examples
If the surveillance is occurring in a large open area where many people are working or passing through, such as a warehouse, a parking lot, or a retail checkout counter, it is less likely that an employee would have a right to privacy from surveillance there.
On the other end of the spectrum, it is very unlikely that an employer could argue there is no reasonable expectation of privacy in the employee bathroom or changing room.
The “Grey Areas”
The real “grey area” in these types of situations is locations like inside of an employee’s private office, cubicles and other, more private areas.
A recent California court decision (Hernandez v. Hillside, Inc.) has helped clarify the situation, but the issue still depends largely on the specific facts of a case.
In cases dealing with such locations, an employer’s policies become very relevant. If an employer has a clear, well-communicated policy that you may be videotaped at any time in any area of the building, this would be strong evidence in the employer’s favor that you do not have a reasonable expectation of privacy anywhere in the building.
These types of policies are currently pretty rare, but other factors also come into play. For example, whether there is a door to your office, whether there is a lock on the door and the number and position of windows in the office are important factors.
A Simple Test
All of these factors basically are parts of the same basic question: does an employee have a reasonable expectation of privacy in a particular area at work.
One simple way to look at it is ask yourself whether or not you would reasonably expect to be able to change your clothes to go to the gym in a certain location and not expect to be interrupted or seen, such as in your private office with the door closed and the window blinds drawn.
If you would be surprised or offended to be watched or seen changing there, it is likely that you have a reasonable expectation of privacy there and video surveillance under those circumstances would be illegal.
“Q&A” posts are based on actual submissions by potential clients. The names have been changed unless permission to print the names has been granted. Fact patterns may be slightly altered to make the issues and language clearer.
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Interesting yet rather obvious answer to the question.
I wonder how surveillance software fits into the pictue of the workplace tho…
Spy software can really monitor every website you go to and the emails you send. This to me, is going beyond what most would expect to be reasonable expectation of privacy.
In dealing with video surveillance technology we have dealt with these legality issues:
The owner of a business has the legal right to use surveillance video in all areas of the business, provided the video does not violate the personal privacy of the person being recorded. Courts have ruled that personal privacy typically extends to restrooms and dressing areas. In addition, some states have created statutes that prohibit recordings that are used for sexual purposes.
As you can see, nearly all business recordings are legitimate and legal.
@Digital Witness Surveillance:
To me the operative phrase in your response is “nearly all business recordings” that “do[] not violate the personal privacy of the person being recorded”.
It is true that some courts have ruled the way you cite, but I see you are in Texas and may not know that in California our laws are somewhat unique. California’s Constitution actually guarantees its citizens a right to privacy that applies to private employers, which the United States constitution does not.
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With crime on the rise many people and business are looking for added security. Video surveillance is one the top ways to improve the security of your belongings and loved ones. I get asked alot about what is good or recommended and although each situation is different there are some common things to consider when showing a video surveillance system that will bring the required results.
You have two basic kinds of video surveillance cameras, there are…
You can read the rest here http://www.hivelocitynetworks.com/blog
Feel free to post and let me know what you think. Thanks