Is Videotaping Workers Harassment?
PUBLISHED BY: LFN Primary
Chicago, IL (Law Firm Newswire) June 16, 2015 – What would a worker do if their possibly questionable actions were captured on video in the workplace?
The conflict between privacy and the right to know what workers are doing mirrors the balancing act that the iconic image of blindfolded Justice attempts with her scales. In order to determine if a worker’s right to privacy has been intrusively invaded it must be balanced against the employer’s right to know what is going on with employees in the workplace – a delicate task of drawing the fine line between two diametrically opposed points of view.
According to the U.S. Supreme Court, a workplace search is legal provided it is necessary and encompasses a reasonable scope. The definition of reasonable scope is often open to interpretation, depending on the circumstances of each case. In general, state courts maintain an invasion of a worker’s privacy must require an “intentional disturbance” into an employee’s private business and that intrusion is highly offensive (to a reasonable person).
“This is an incredibly important issue and it focuses on the delicate balance between a right to privacy and an employer’s right to manage and maintain control over and in the workplace,” said respected Chicago employment attorney, Timothy Coffey. “Where is the line before videotaping goes too far and infringes on a worker’s right to privacy?”
When the American Management Association (AMA) conducted a survey on surveillance in the workplace, they discovered virtually 55 percent of business survey participants currently monitor workers by video. Forty-eight percent of employers use surveillance to combat sabotage, theft and violence in the workplace. Seven percent said it was a tool used to assess workers’ performance on-the-job.
If the videotaping only relates to the performance of a job, like a worker on an assembly line in charge of placing particular parts in a mechanical item, it is not that offensive. If theft or harassment issues are prevalent in a workplace, it makes sense an employer would use videotaping to catch a thief or to stop harassment. The up-side of taping is it can potentially enhance worker safety, protect a workplace from theft and provide evidence (when needed) in the form of irrefutable video footage and put those being watched on their best behavior.
“However, there is a caveat, and that is those areas may not be taped without a necessary business reason,” added Coffey. “That does not mean that an employer has carte blanche to tape anything, anywhere for any reason that might occur to them.”
Workers must be informed they are being taped, why they are being taped, notified in writing that they are being taped, sign documentation that acknowledges they are under surveillance and informed what areas are not taped and are for personal use.
Taping in a break room, locker room, or other private area, such as a bathroom or shower area is altogether off the table and a violation of a worker’s right to privacy. Some states have privacy laws relating to using cameras and video equipment. An example would be that in Connecticut, employers may not tape in employee lounges, bathrooms, locker rooms or any other area specifically designated as a worker’s rest area. In California, installing a one-way mirror with a video camera on the other side is illegal.
Where there is no state law that specifically prohibits or allows video surveillance, courts are faced with the issues of balancing two opposing interests: a worker’s reasonable expectation of privacy versus an employer’s need to conduct taping. It is a delicate balance and a court’s decision may well turn on a dime given the circumstances of any given case.
An example may be a worker booking FMLA leave suggesting they are ill only for someone to later discover the employee was white water rafting. The employer may have a good reason for obtaining tape of an employee and thus the facts of any given case are one factor in determining whether a worker’s right to privacy has indeed been violated.
Should a worker choose to sue an employer for invasion of privacy, they must show a legitimate expectation of having privacy at work. If documents were signed acknowledging the presence of surveillance equipment or a worker signed their right to privacy away in an employment agreement, suing may be difficult, but not impossible. An example would be if a worker was told their Internet usage would be monitored, and they accessed sites that were not work-related and were caught, suing may not be an option.
Another example would be labor unions exercising their rights. Federal law says these activities are protected under section 7 of the National Labor Relations Act (NLRA).
“This is a constantly evolving area of the law. If you feel your privacy has been invaded at work, contact an experienced employment attorney. You need to know your rights,” said Coffey.Learn more at http://www.employmentlawcounsel.com/ THE COFFEY LAW OFFICE, P.C. 351 W. Hubbard Street, Suite 602 Chicago, IL 60654 Call: 312.627.9700