The Watchful Eye Of An Employer Can Invade The Employee's Privacy.

The Watchful Eye Of An Employer Can Invade The Employee’s Privacy.
Employers can be liable for secretly placing a video camera
in an employee‘s office, even if the employer does not view
any of the video. An employer must control his watchful
eye and use it in limited circumstances.

A California employer, who operates a residential facility
for abused children, placed a camera in an office to
determine who was accessing pornographic websites at night.
The camera was activated at all times in the office. The
employer told a few employees about the camera, but not the
female employees occupying the office, because the employer
feared that these talkative employees may inform the
perpetrators. While the camera was activated, a female
employee who occupied the office, on occasion, closed the
door, pulled down the shade to show her coworker how she
was recovering from child birth. The employer was tagged
with invasion of the employees' privacy. It did not matter
if the employer viewed the videotapes or not. The fact
that the employer had access to viewing was enough to
invade the employees' invasion of privacy. The employees
had an expectation of privacy that when the door to their
office was closed, images of them in the office would not
be transmitted.

Employer video surveillance is permissible in widely
accessible areas because there are little expectations of
privacy. For example, a room in a janitor break room was
found to be permissible because the room was readily
accessible to others. Jails are another place where the
expectation of privacy is low. In a Sacramento jail, money
was missing from a jail release office. A camera was
installed to focus on the safe and the cash register area.
The officer used the office for playing cards, working on
his checkbook and his fantasy football league. The court
held that the hidden camera was not unconstitutional
because of the diminished expectation of privacy in a jail.
The expectation of privacy is also low in bars and cafes.
However, bathrooms have a higher level of privacy. In
California, a trucking company employer videotaped the rest
room through a mirror to detect drug use of its driver
employees. This was deemed impermissible.

What does an employer do to prevent a lawsuit for invasion
of privacy as a result of improper video or audio taping in
the workplace?

1. There should be strict and well-reasoned controls on
video and audio devices. The use of any audio or camera
devices for surveillance should be limited in a workplace.
Videotaping must be justified on the facts and the industry
and surveillance should be limited to a specific purpose.

2. The employee manual should state that employees have no
expectation of privacy in their office and that there may
be video or audio taping at any given time. This employee
manual warning is similar to the non privacy warning that
employees' receive about emails and computer usage. If an
employee needs to undress this should be done in the
restroom, where an employee has the highest level of
privacy. Courts have found that videotaping in restrooms
is impermissible.

It is understandable that employers have to limit their
liability and need to be watchful of criminal activity or
other illegal activity. However, employees do have privacy
rights. Employers must strike a delicate balance and make
well-reasoned decisions, in light of employees' right to
privacy, before undertaking a secretive watchful eye.

----------------------------------------------------
By Elizabeth A. Moreno, Esq, a Los Angeles employment
attorney and mediator, who guides businesses through
treacherous rivers of employment compliance and litigation
that threaten to sink their business. For more information
go to http://www.eampc.com or contact morenolaw@eampc.com. .