Telling employees where and why cameras are being used in the workplace is the best way to avoid legal problems, according to Lisa Guerin, co-author of "The Essential Guide to Federal Employment Laws" (Society for Human Resource Management/Nolo, 2011).
There is implied consent if an employee continues to work in an area where a camera is visible, said Ginger McCall, director of the open government program at the Electronic Privacy Information Center in Washington, D.C.
But David Gevertz, an attorney with Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Atlanta, cautioned that “while employers may argue that their employees have implicitly consented to surveillance by continuing to work in areas with visible cameras, the better course of action is to provide formal notice of these cameras.” He remarked that “notice is typically found to be reasonable via obvious signage, stand-alone policies, signed authorization, inclusion in an employee handbook, or where it accompanies a paycheck or pay stub.”
Employers are best served by installing cameras in places where they can claim they will be used to prevent, detect and investigate theft, on-the-job misbehavior such as drinking or smoking, and unsafe working conditions, Gevertz noted. These places include storage areas, loading docks, parking lots and areas immediately inside and outside of external doors, and public or common areas other than employee lounges.
Employers in at least 13 states are prohibited from placing cameras in bathrooms, locker rooms or changing areas, and in areas where employees are allowed to sleep or rest, Gevertz stated. Even if there is concern about employees smoking in bathrooms, employers don’t have the right to install cameras there, remarked Anthony Oncidi, an attorney with Proskauer Rose in Los Angeles.
And the California Supreme Court ruled in 2009 that employers may not install hidden video cameras in an employee’s office absent notice (Hernandez v. Hillsides Inc., No. S147552), Gevertz added.
If a video is going to be used as the basis for disciplinary action, give employees the opportunity to review the video and explain their behavior, Gevertz recommended.
If a camera captures criminal behavior, such as drug dealing, the employer should consult with a lawyer about whether to involve law enforcement, Guerin added.
Less dramatically, filming may reveal problems employees are having, such as confusion about how to handle merchandise returns or how to respond to customer complaints, Guerin noted. “Or it might show that employees are bending the rules in small ways—taking breaks that are too long or making personal calls on work time, for example. In this situation, the employer might want to do some training or otherwise remind employees of its expectations.”
Cameras are effective tools for identifying safety lapses or the causes of accidents in manufacturing settings, Gevertz noted. Cameras are “particularly adept at investigating theft or unauthorized access of company property,” he remarked.
“Employers who want to install cameras must also keep the union in mind. This may be an issue that the employer is required to bargain under an existing collective bargaining agreement,” Guerin noted. “Also, it is an unfair labor practice for an employer to conduct surveillance of union meetings or organizing efforts.”
Gevertz said unionized employers are typically required to inform the union only of an intent to use hidden cameras, but not the cameras’ locations.
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Allen Smith, J.D., is manager, workplace law content, for SHRM.