HR Management & Compliance

Electronic Surveillance Update: When and How to Use Workplace Monitoring Devices Without Getting Sued

Employers are increasingly using surveillance devices to combat theft and drug abuse and improve overall security at work. But you could find yourself in serious trouble under federal and state laws if you’re not careful. We’ll look at two recent cases that focus on some complex issues involved in workplace surveillance.


400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.


Employees Discover Secret Camera

The first lawsuit involved a hidden camera at the Sacramento County jail. After inmates’ money was stolen several times from the jail’s release office where it had been stored, the Sheriff’s Department began a criminal investigation. A concealed video surveillance camera was placed in the office. There were no notices warning that the camera was present. The day after it was installed, deputies who worked in the office discovered the camera and removed it.

But the deputies didn’t stop there. They sued, claiming the surveillance was illegal because it occurred in a private work area. The Department argued that the videotaping was permissible because it wasn’t reasonable to expect privacy in that office.

Court Says Secret Camera Legal

The Court of Appeal agreed with the Department. It pointed out that because of security concerns, prison employees should generally expect less privacy than in other workplaces. Also important was the fact that the release office was clearly not a private place. It didn’t have a lock on the door and was accessible to people other than the deputies, including inmates on cleaning detail. And because money was stored there, security was especially important. For all of these reasons, videotaping without notice to the employees was justified.

Taped Conversations

In the sheriffs’ dispute, the video camera didn’t record employee conversations.

But another new case highlights an important California law that prohibits the secret recording of confidential conversations. Although the lawsuit didn’t involve an employer-employee dispute, it has important workplace implications.

Undercover Reporter Hired

As part of an undercover investigation into the tele-psychic industry, ABC PrimeTime Live reporter Stacy Lescht got a job with a Southern California telephone psychic advice service. Her investigation technique was similar to PrimeTime Live’s exposÄ involving Food Lion. Lescht secretly videotaped and recorded two conversations she had with tele-psychic co-worker Mark Sanders, one at her cubicle and the other at his. The cubicles were in a large room, and what was said could be heard by many people.

PrimeTime Live aired a portion of one of these conversations on TV. Sanders sued ABC and Lescht for invading his privacy by secretly taping his conversations. ABC and Lescht, however, argued the recording was legal because the conversations were not confidential nor could Sanders have reasonably expected them to be. Nevertheless, a jury awarded Sanders $1.2 million.

OK to Record Non-Confidential Conversations

The Court of Appeal threw out the jury verdict. The court observed that under California law, it’s illegal to record a confidential conversation or communication without the consent of all the parties. But, in this case, given the room’s open layout and the fact that conversations could be easily overheard, Sanders didn’t have a reasonable expectation of confidentiality or privacy.

Limits on Surveillance Programs

Although in both of these cases the court approved the surveillance, you still don’t have a green light to use secret cameras in the workplace or to tape record employee conversations without taking precautions. Here are some important guidelines:

 

  • Hidden cameras. The general rule is you may not install a hidden camera in any location where employees expect privacy, such as locker rooms, rest rooms or private offices. If you want to use surveillance devices for legitimate purposes, such as to detect theft or intruders, put the cameras in plain view and post a notice so people know they are being watched or taped.

    If giving advance notice would defeat the purpose of the surveillance-the problem the Sacramento Sheriff’s Department faced-get legal advice first. (For details on other types of workplace monitoring, including two-way mirrors and electronic eavesdropping, see CEA May and June 1994.)

     

  • Recording conversations. You can tape or monitor conversations-either face to face or over the telephone-only if you have the consent of the employee or in circumstances in which there is no expectation of privacy, as in the PrimeTime Live case. But determining when a work area is private can be tricky. And if you’re wrong, the consequences can include steep penalties and potential jail time, as well as a lawsuit for damages.

Additional Cautions

Although it may be tempting to record an employee’s statements on tape as part of an investigation or as a defensive measure, it’s best not to unless you get the person’s consent-in writing or on the tape. Also, when monitoring or recording telephone conversations for quality control or training purposes, always notify both the employees and the callers. This alerts people that what they say isn’t private.