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As surveillance camera systems and other monitoring methods have grown more efficient and more convenient to install and use, more businesses are upgrading their security technology. This has brought major security benefits, but it has also created new privacy concerns. For instance, retail chain Forever 21 is currently facing a $2 million lawsuit after a former employee complained that footage from hidden cameras installed in a company bathroom was distributed to pornographic websites. As this illustrates, indiscriminate use of surveillance technology can land your company in potentially expensive legal trouble. Here are some important things your company needs to know about ethical and legal issues surrounding security monitoring privacy concerns, consent requirements and restrictions on what you can do with surveillance footage.
When businesses are assessing privacy concerns over security monitoring, there are two major principles that determine legality, says attorney and legal author Lisa Guerin. The first is state law. While federal laws have yet to address many privacy issues raised by security technology advances, many states have passed their own laws which employers must take into consideration. For instance, California has particularly strong laws governing employer use of surveillance technology. To take one example, it is illegal in California to install a see-through surveillance mirror in a restroom, fitting room, locker room or shower. Due to California’s strong employee privacy laws, one California sales representative was able to sue her employer after she was fired for uninstalling a GPS tracking app that was being used to monitor her company-issued phone when she was off the clock, a case she might not have won in another state.
In the absence of clear state laws, there are two main factors that generally weigh into the legality of surveillance footage. The first is whether the employer has a legitimate business need to conduct surveillance. For instance, an employer might argue that security monitoring is necessary to prevent shoplifting. The second factor is employees’ reasonable expectation of privacy. For example, employees can reasonably expect not to be filmed while going to the bathroom.
Surveillance may also be restricted under other specific conditions. For instance, cameras that record sound may violate wiretapping laws, and it is illegal for employees to covertly record union meetings. If you’re not sure of the legality of a particular form of surveillance, get clarification from an attorney specializing in employment law.
Recording employees without their consent can increase your legal risk. For instance, in many states, it is illegal to record workplace conversations without the consent of both parties, says employment attorney Kristin Case. Failing to obtain consent can weaken your case in a privacy suit and can even subject you to liability and penalties for wiretapping and eavesdropping.
Before recording employees in the workplace, you should protect yourself by obtaining employee consent, recommends the law offices of Paul A. Samakow. The governing principles here are notice and warning. You can notify and warn employees that they are under surveillance by publishing a written policy and advising employees that they are being monitored. Employees who have been notified and warned are less likely to file a suit against employers, and employers who have given notice and warning are more likely to win against invasion of privacy claims.
Even after obtaining consent from employees to monitor them, there are ethical and legal restrictions on how you can use the resulting surveillance footage. In general, it is acceptable to use surveillance footage to prevent or witness crimes. For instance, many employers today use Ultra HD 4K IP surveillance camera systems to record crime scene details which can be used to identify shoplifters or employees who steal. This is a legitimate use of surveillance footage. Video footage may also be used to monitor employee performance and to weigh disciplinary measures.
On the other hand, just because an employee gives you consent to monitor them for security or performance purposes doesn’t give you a right to violate their privacy in situations such as using the bathroom and changing clothes. It also doesn’t authorize you to sell their image and likeness for commercial purposes. For instance, featuring an employee in an ad without their consent may open the door to a lawsuit. If you wish to use employee surveillance footage in an ad, it is best to build this into their contract ahead of time or obtain specific consent.
Workplace security monitoring should always be conducted in accordance with state law, for legitimate business purposes and in consideration of workers’ reasonable expectation of privacy. Obtaining consent from employees to monitor them can help guard you against potential legal problems. Uses of surveillance footage should be restricted to legitimate purposes such as preventing and witnessing crime, and evaluating worker performance, and should exclude invasions of privacy in bathrooms or changing rooms and unauthorized commercial use of an employee’s image and likeness. To ensure your monitoring practices are in accordance with the law, the best practice is to consult an employment law attorney.