Question: We plan to install security cameras in the production area of our nonunion food packaging facility because of an increase in damaged product and safety incidents. Can we post signs at all entrances stating surveillance cameras are in use, or do we need to have each employee sign a waiver?
Answer: Generally, you may monitor most areas of the workplace as long as you notify employees in advance that you have recording devices and/or video cameras installed in public areas. That’s necessary to ensure workers have no expectation of privacy.
Employers typically communicate the video surveillance information to employees through a policy in the handbook that they’re required to sign at the start of employment. You also should post conspicuous signage anywhere the cameras are in use.
After giving advance notice to employees, many employers use video surveillance in public areas for legitimate business reasons, for example, to (1) minimize attendance problems, theft, and alcohol and drug use, (2) identify unsafe working conditions, (3) provide data security, and (4) assist with quality control. Many also use it to gather evidence of any crime that might have occurred at work.
Notably, you shouldn’t use video surveillance in areas where employees have a reasonable expectation of privacy (e.g., restrooms, locker rooms, changing rooms, showers, and lactation areas).
Federal and State Legal Concerns
You also should be aware of various state and federal rules about when and how a party may record a conversation. If the process isn’t handled correctly, your company risks monetary damages under state and federal law as well as other potential civil and criminal legal liability. Under the federal wiretap law, an individual can win the greater of a fine of $100 per day or $10,000 per violation (see 18 U.S. Code Section 2520).
Further, employers in “one-party consent” states (such as Arizona) must be careful when recording conversations between coworkers when they (or their representatives) aren’t a party and don’t have consent from one the individuals. For example, if a conversation was taking place between HR and an employee, HR could give the consent to record the discussion, but if the employee was speaking with a coworker, the employer couldn’t secretly record the talk without one of the participating parties’ consent.
Also, under the National Labor Relations Act (NLRA), employees at union and nonunion workplaces have the right to help one another by sharing information and seeking to improve wages and working conditions. Employers using surveillance must be careful to avoid wrongfully interfering with employees’ rights to gather, discuss work conditions, or engage in concerted activity.
Juliet S. Burgess is the founding partner of The Burgess Law Group in Phoenix and a contributor to Arizona Employment Law Letter. She represents employers of varying sizes and industries with respect to labor and employment law, HR matters, litigation, trainings, and workplace investigations. For more information, please visit www.theburgesslawgroup.com or e-mail Juliet at juliet@theburgesslawgroup.com.