Secret Use of Video Cameras to Monitor Employees, Quirky Question # 49

Quirky Question # 49:

We have had various situations where we have thought that secretly installing a video camera would help us identify individuals behaving inconsistently with our company’s workplace rules.  We don’t know whether this is a good or bad idea and we don’t know what risks are associated with secret videotaping of our employees.  Do you have any thoughts on this subject that you would be willing to share?

Dorsey’s Analysis:

Your question is a good one, but you have not given me quite enough information to respond specifically.  What types of “situations” have you had where you concluded that the secret  installation of a video camera would benefit the company?  What types of conduct has occurred that you believe is “inconsistent with your company’s workplace rules?”  Are you referring to the theft of company property?  Illegal drug use?  Something else entirely?  Depending on the nature of the problem your company is confronting, you may or may not want to consider secret video surveillance of your employees.

In addition, there are a few other questions I would pose to you.  First, where do you intend to install the cameras?  Second, are the cameras going to be on 24-7, or will they be confined to the hours following the conclusion of the workday?  Third, is your workforce unionized?  Fourth, if the existence of the cameras became known to your employees, how do you think they would react?  Finally, are there less intrusive methods of gathering the information you deem important?  Each of these questions should be assessed by you when considering whether to install video cameras without your employees’ knowledge.

In general, with respect to non-union employees (union employees are discussed further below), the use of secret video cameras is permissible.  But I wonder whether use of the cameras is worth the ill-will that likely would be generated (“the company was spying on us” reaction) if the existence of the cameras is revealed at some point.  (And, you should assume that, at some point, your company’s use of the cameras will be revealed.)  Another concern I have is that the use of video cameras creates the opportunity for mischief.  This could apply both to how the cameras are used and what is done with the videotapes generated by the surveillance.

For example, let me start with an extreme (and I hope, atypical) scenario, which concededly is beyond the scope of your question.  In a case out of Georgia in 2005, a male supervisory employee at a company set up a video surveillance camera in the ceiling of a women’s worksite restroom.  The outcome of the ensuing litigation was predictable – the company lost the “invasion of privacy” litigation even though it claimed ignorance of the supervisor’s conduct.  See, Johnson vs. Allen (Ga. Ct. App. March 17, 2005).  Oh yeah, another consequence of the behavior was that the supervisory employee was fired.

Even if the supervisor was not just a voyeur and had a legitimate purpose in mind, the secret installation of video cameras in a bathroom, locker room, or similar location is going to lead to litigation the company will not be able to win.  For example, even if a company had credible evidence that narcotics sales were taking place in the women’s restroom, the solution is not to install video cameras in the women’s restroom.  Call your County Attorney and let the prosecutors and police determine the best way to address your suspicions regarding the sale of narcotics.

Another case, this one from California, illustrates the potential problems with regard to the use of secret video cameras, even if the employer is trying to address a legitimate workplace problem.  In the case of Hernandez v. Hillsides, Inc., B-183713 (Ct. App. September 14, 2006), the employer set up a motion-activated camera in an office to determine who was accessing a company computer at night to view pornography.  A manager disconnected the camera each day before the workday began and reconnected the camera each night after the workday was over.  One day, the manager forgot to disconnect the camera in the morning.  Of course, this was the day that two employees discovered the still-recording camera.  They sued for invasion of privacy.  Although the trial court found that the employer’s interest in installing the video camera was legitimate, and outweighed the two employees’ expectation of privacy in their shared office, the appellate court disagreed.  The California Court of Appeals found that an employee “need not establish that he was actually viewed or recorded to succeed on a cause of action for invasion of privacy.”  The court noted that the employer could have used the camera if it provided notice to the employees that the camera was in use.  But, obviously, this typically would defeat the purpose of the monitoring.  [Note that the California Supreme Court accepted review of the Hernandez decision in 2007.  I have not seen, however, any subsequent activity relating to this case.]

The Hernandez case was decided on the protections afforded by the California Constitution.  This highlights another point applicable to this question, and much of employment law.  Although there are critically important federal statutes regulating many facets of employment law (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the National Labor Relations Act, to name just a few), much of employment law is state law dependent.  What may be acceptable in Minnesota may not be acceptable in California or other jurisdictions.  Therefore, when determining the appropriate course of conduct for your employer, you must consider where your policies or procedures will be applied.

As referenced above, another key consideration when evaluating the use of secret video surveillance is whether the employees being monitored are parties to a collective bargaining agreement.  The National Labor Relations Board has held that it is an unfair labor practice to install hidden surveillance cameras without bargaining with the workers on this subject.  See, Anheuser-Busch, Inc., 342 NLRB No. 49, 7/22/04.  But, in a split decision, the NLRB did NOT revoke the discipline imposed on the workers (including discharge) based on the activities revealed by the surveillance cameras.

As these examples illustrate, the decision to utilize secret video surveillance is not an easy one.  You should ensure that the individuals involved in setting up and monitoring the cameras, as well as handling the tapes, are completely responsible.  You should consider carefully whether there is a less intrusive method of obtaining the information provided by the video cameras, recognizing that some courts (especially in some states) may be particularly sensitive to the privacy interests of the affected employees.  And, you should ensure that the interests you are seeking to protect could be legitimately juxtaposed to the privacy intrusion represented by the use of this surveillance technique.  If you are confident about your analysis of these issues, when applied to the law of the jurisdiction where you seek to install the cameras, and if you are cognizant of the fact that such use would not be appropriate for a unionized workforce, you may elect to utilize surveillance cameras.  Finally, however, be attuned to the impact such use, if disclosed, would have on management-employee relations.  When you factor that variable into your calculus, you may decide that the benefits of surreptitious surveillance just aren’t worth it.

Dorsey & Whitney

Dorsey & Whitney

Dorsey is a business law firm, applying a business perspective to clients' needs. We make it our first priority to know the context in which you do business - your market, your competitors, your industry.

You may also like...