Catching Them in the Act: Legal Surveillance

02/27/07

“It’s happened again,” said Barbara, the plant manager.

“No!” exclaimed Sam, her boss.

“Yes,” said Barbara. “That’s the fifth time someone has pulled the fire alarm and cleared the plant in six weeks.”

“We have to put an end to this! It’s killing our productivity.” said Sam. “What have you been doing to stop it?”

“All the supervisors have been watching carefully, for one thing,” said Barbara. “And we’ve issued bulletins that outline the penalties for making false alarms of any kind in the plant. I’ve asked some of the old timers what’s going on, and they don’t know. They are as disgusted as I am. Some say they believe it’s one of the tattooed crowd.”

“Time for heavier artillery, then,” said Sam. “I want you to install surveillance cameras. And keep ‘em hidden. I don’t just want to deter people—I want to catch who’s doing this red-handed. Put cameras in the locker rooms and break room, too, with microphones. People who do stuff like this love to brag.”

“Is all that legal?” asked Barbara.

“Of course it . . . well, I don’t know,” said Sam. “Maybe I’d better check with our lawyer first. I’ll get back to you.”

The Analysis
This scenario pits employees’ privacy rights against the employer’s need to manage its business and control misconduct.

Most states have recognized either by statute or through case law that a person has a right to be free from unwarranted intrusions into his or her private life. Each of us has a “zone of privacy” in which we should feel free from scrutiny. But the workplace is generally not regarded as private. Further, most courts have recognized that employers have a right to investigate suspected misconduct, particularly where it may threaten the safety of its employees.

Laws vary somewhat from state to state, and whether an employer is public or private has some bearing on the extent it can monitor lawfully. Yet there are a few basic ideas you can use to guide a decision to monitor employees.

Dispel Their Notions
First, the measures an employer can lawfully take to search, observe, or otherwise monitor its employees are largely determined by the extent to which its employees have a reasonable expectation of privacy on the job. The key is to dispel any notions of privacy.

Before conducting a workplace search or monitoring, make it very clear to employees that they do not have a reasonable expectation of privacy in, for example, their persons, property they bring onto the your premises, and in facilities and equipment you provide for employees’ use (like computer systems, desks, or lockers). Your policy should explain to employees clearly what you consider “fair game” to search for and why, and require every employee to sign the policy.

Public employers must be more careful than private ones, since public-sector employees are generally protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures by the government. This generally gives public-sector employees more rights than employees of private employers.

Monitoring: Generally Lawful
Second, although the laws vary somewhat from state to state, it is generally lawful to monitor employees’ work habits and work areas provided you have removed any reasonable expectation of privacy the employee might have in those areas.

Surveillance cameras are usually lawful, as long as employees know they are being monitored and cameras are installed in areas where employees are not likely to have a reasonable expectation of privacy—like parking lots or plant entrances.

An employee would have a hard time coming up with a credible argument for having a reasonable expectation of privacy in such areas. However, an employer embarks on a significantly riskier course of action if it installs cameras or other surveillance devices in such places as restrooms or dressing rooms.

Another general rule of thumb is that while using cameras for surveillance is usually lawful, audio recordings generally are not. In fact, audio recording of employees’ work areas and conversations can violate state and federal wiretapping laws.

Video Yes, Audio No
Returning to the scenario, this employer’s plan to install security cameras in common areas is fine, provided employees are given notice in advance that they will be monitored this way. However, it’s not a good idea to place cameras in locker rooms. Installing microphones or otherwise recording employees’ break room or locker room conversations could get this employer in some real hot water, so I’d strongly advise against that, too.

It’s possible that the installation of the cameras alone will be an adequate deterrent to future false alarms. If it isn’t, I’d advise the employer to consider bringing in a security company or a private investigator as a consultant. Although it can get expensive, these folks have ways of finding out who the bad guys are that most of us would never think of and sometimes get great results when everything else fails.