[co-author: Mitchell Dolman]
More and more, employers have considered using surveillance within the workplace, whether it is to prevent theft, measure productivity, or simply monitor what employees are doing when they are on the clock. While these are legitimate business concerns, employers should be mindful of varying state laws on surveillance and an employee’s reasonable expectation of privacy.
An employer has a legitimate interest in maintaining an efficient and safe workplace operation. However, this interest is not without limitation. One aspect of that interest is monitoring open work areas where an employee has no reasonable expectation of privacy. Additionally, even when monitoring these open areas, the affected workers should be provided with clear notice from the onset of their employment that their conduct in open work areas could be observed.
Under the Constitution, a person has an expectation of privacy. However, this expectation of privacy must be reasonable and is usually not found in open areas of work, i.e., a hotel lobby, the kitchen of a restaurant, the production area of a warehouse. Contrast this with areas such as a bathroom, locker room, and even an employee’s office, where there are greater privacy concerns.
Constitutional protections are further enforced through the wiretap and surveillance acts of various states. There are currently 11 two-party consent states. A two-party (or all-party) consent state requires that any and all parties to a conversation must give their consent to being recorded at the outset of the conversation, when there is a reasonable expectation of privacy. Therefore, if you are an employer located in a two-party consent state, and you are conducting surveillance in an area where employees have a reasonable expectation of privacy, you must inform employees that they are being recorded and get their consent to continue recording. If you fail to do so, you could face criminal liability, and any recording would not be admissible in any litigation for theft, discrimination, harassment, etc. In addition to potential criminal exposure, an employer could also be liable for civil damages. One suggestion would be to include a disclosure within the employee handbook and require an employee’s signed consent and acknowledgement of the surveillance and/or recording policy.
Following the COVID-19 pandemic and the flexibility of remote work, employers must now contend with additional privacy concerns and notice laws in different jurisdictions. In the era of widespread remote work, employers may look at employing surveillance on computers within the home to capture and ensure that employees are working during the required times. This level of surveillance and recording gets complicated because now the surveillance is in the home, a location traditionally known for an expectation of privacy and protected under the Constitution. And second, the employee may be working from home in a two-party consent state, but the employer’s base is in a one-party consent state. The dynamic of which state wiretap law is controlling can get complicated, especially when coupled with the unique and private nature of the home. In looking at options for various tracking mechanisms, employers may instead look at alternatives to video surveillance or recording like software programs installed on company computers that can track productivity and work during core hours. Even with these alternative measures, the employer should provide the requisite notice to the employee. The employer should also require that employees provide notice of their location for remote work and make sure to document that location for compliance purposes. This practice is not only important for compliance with wiretap laws, but may also serve as a legitimate business interest in ensuring that employees are working at a location where they will be able to maintain the confidentiality of employer/client information.
As the world continues to open up, it is more likely that we will continue in a hybrid work environment. Whether employees are in-person or at home, employers should be mindful of privacy concerns, provide notice of surveillance and/or recording devices, and comply with local laws.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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