Surveillance cameras have become so common that people barely notice them even when they’re in plain sight. Cameras frequently hum at traffic signals, parking lots, stores, even offices and factory floors. They’re not always obvious, though. Employers may want to use hidden cameras to secretly monitor workers–especially if workers are suspected of misconduct and the employer needs to catch them in the act. 
But in some circumstances, an employer is wise to resist the temptation to install hidden cameras, and various factors need to be taken into consideration before installing any kind of surveillance system.
Recently attorneys who deal with employment law matters were asked about the implications of installing a hidden camera in an attempt to catch an employee rumored to be sleeping on the job. The employer already had installed surveillance cameras that were easily recognizable, and the employer had issued a written notice to all employees informing them of the surveillance.
Then a manager asked to have a hidden camera installed over the work area where the employee was suspected of sleeping, and the employer sought advice. As is often the case when dealing with workplace issues, no definite yes or no answer exists.
“Generally, you should be able to use a hidden camera in the workplace,” Ryan B. Frazier, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, says. But risks need to be kept in mind, since laws related to invasion of privacy, the right to engage in protected concerted activity, and union negotiations must be considered. Also, various state laws may restrict the use of surveillance cameras.
Consider privacy
Invasion of privacy is a major concern in the decision to install hidden cameras, Frazier says. “Usually, a court would look at whether a hidden surveillance camera is an unjustified invasion of an employee’s privacy,” he wrote in the September issue of Utah Employment Law Letter. “The court would balance the employee’s subjective reasonable expectation of privacy against the employer’s legitimate business interests in conducting surveillance. In this case, monitoring employee conduct (i.e., making sure employees aren’t sleeping on the job) would probably be considered a legitimate interest.”
A court considering a privacy claim also would look at whether the employee was reasonable in expecting privacy in the monitored area, Frazier says. Therefore, cameras shouldn’t be placed in areas employees would expect to be private, such as restrooms, locker rooms, and changing areas. But other areas such as a cubicle or a private office also carry an expectation of privacy.
Union negotiations
The decision to use surveillance can be more complicated in unionized workplaces, since the installation of surveillance cameras affects the terms and conditions of employment and is therefore a mandatory subject of collective bargaining, Rachel Burke, of counsel to Porter Wright Morris & Arthur LLP in Cincinnati, Ohio, says. So unless the subject is allowed in a collective bargaining agreement, unionized employers “cannot unilaterally install cameras, hidden or otherwise, even with notice to employees,” she wrote in the September issue of Ohio Employment Law Letter.
Jacob M. Monty, of Monty & Ramirez LLP in Houston, Texas, pointed out in the September issue of Texas Employment Law Letter that the National Labor Relations Board “prohibits employer surveillance of employees’ union activities, including union meetings that may be conducted on your premises.”
NLRA concerns
H. Mark Adams, an attorney with Jones Walker LLP in New Orleans, Louisiana, reminds employers to keep the National Labor Relations Act (NLRA) in mind. The NLRA prohibits employers–both union and nonunion–from taking actions that may have a chilling effect on employees’ rights to engage in protected concerted activity such as discussing workplace concerns and union organizing.
“So, if you use surveillance cameras in your workplace, be sure to notify employees of the legitimate purpose of the cameras in areas where they are in open view (e.g., to promote safety or measure productivity), and limit the use of hidden cameras to situations in which you suspect employee misconduct,” Adams wrote in the November issue of Louisiana Employment Law Letter.
Steve Jones, an attorney with Jack Nelson Jones, P.A. in Little Rock, Arkansas, points out that various factors determine whether surveillance is allowed under the NLRA. “First, context is important,” Jones wrote in the September issue of Arkansas Employment Law Letter. “If you have a history of union hostility or if the reason for the surveillance is related to employees engaging in protected concerted activity, the surveillance would be more likely to violate the NLRA.”
Jones also says to consider the time, location, and activities that will be observed. Even though an employer may want to monitor a work area during work hours, it still could observe employees engaging in other activities. “If you were to observe them engaging in concerted activity–regardless of whether that was your intention–your recordings could violate the NLRA,” Jones wrote.
Jones also says the party conducting the surveillance is relevant. “An independent security agency that informs management only when employee misconduct, theft, or other security issues are caught on camera would be less likely to violate the NLRA than your own managers recording and watching the videos,” he wrote.