July 2004 Mfg.Trust

Mfg.Trust is a monthly feature of the
            NCMS InfraGard Manufacturing Industry Association
                        Infrastructure assurance for manufacturers
                                    Powered by NCMS.

This month – VIDEO SURVEILLANCE AT WORK
Privacy Expectations in the Workplace

See the Resources Page for this Story 

Editor's Preface:

How prevalent will video surveillance become in the workplace? Well, it depends. Case law has shaped industry practices in unusual ways. It is important that managers have a sense of the issues, to avoid errors and misinterpretations that destroy trust in the workplace. There are also many legal issues surrounding the use of video surveillance. It is clear the use of video surveillance should only be undertaken after consulting with qualified legal counsel.

As usual, the Resources page that accompanies this article offers a rich information set for more study. See http://trust.ncms.org (Publications Index tab).

Editor

VIDEO SURVEILLANCE AT WORK

Overview

According to NBC Nightly News, forty percent of the small businesses in America today use video surveillance to monitor their workers.

Most of these cameras are mounted in the open and record all activity in the workplace. Many can be found in grocery stores, gas stations and fast-food franchises. Others are used in factory settings or businesses where many employees are at work. Many home owners also place cameras to secure their property and watch housekeepers and child care workers. These cameras grind on 24-hours a day recording everything that occurs in these environments.

According to the Electronic Privacy Information Center, video surveillance, under federal law, is generally acceptable where the camera focuses on publicly accessible areas. However, installment in areas where employees or customers have a legitimate expectation of privacy, such as inside bathroom stalls, can give the employee a cause of action under tort law.

US Legal Precedents

Video surveillance is a mandatory subject of bargaining for unionized industries according to a 1997 decision by the NRLB. (See Resources links for the specific Colgate-Palmolive citation). This means that an employer cannot install hidden cameras for surveillance of employees without first bargaining with the union over that subject. During the bargaining process employers are obligated under the Colgate decision to tell unions not only why they want to install cameras but where they plan to install them.

Many questioned this decision, arguing that the disclosure of the details of surveillance cameras would defeat their purpose. However, a second court of appeals has now affirmed the Colgate-Palmolive doctrine.

These decisions often create practical problems. In their article referenced in the Resources Page, Klein, Zelman, Rothermel & Dichter, L.L.P. note that, if a company requires the union to maintain confidentiality about the location of cameras, employees will still know that surveillance is being done. While recognizing the value of surveillance to prevent illegal activity, few unions will agree to keep surveillance secret. To do so would expose them to possible litigation if union members were terminated because of surveillance.

While nonunionized companies have one less hurdle to use video surveillance there are still many legal considerations that must be addressed. In addition to federal laws many states have their own laws and guidelines that must be followed.

Video surveillance must not capture audio or run the possibility of running afoul of federal “wiretap” statutes. A federal statute passed in 1968 and amended in subsequent years (1986,1994) now covers cell phone and telephone devices, oral conversations, and other electronic communications. Depending on the severity of the violation, responsible parties may be liable damages of either $100 or $10,000 per day (Technological Surveillance in the Workplace) as well as punitive damages and legal costs.

Privacy Rulings Abroad

As opposed to United States, many other countries have enacted recent privacy legislation specifically dealing with video surveillance in the workplace. Foreign practices in these countries are worth reviewing because they may serve as a forerunner of what to expect in this country.

The UK has a well-established practice of surveillance of public places and a permissive view of surveillance activities. Laws protect the privacy of employees in the workplace to some degree while employers are most often given the explicit right to use video surveillance to prevent theft and other illegal activities occurring on their premises. In Canada the conditions under which covert surveillance may be carried out are generally explicit and restrictive.

See the resources section for links to reviews of particular laws.

In Summary

Video surveillance is becoming prevalent in American life. According to a 1997 survey conducted by the American Management Association, 63% of the midsized and large U.S. companies surveyed engage in one or more monitoring or surveillance activities. Out of the 906 companies surveyed, more than one third videotape employees, record employee's phone calls or voicemail, or review computer files and e-mail. Although most of the companies just "spot check," roughly ten percent of the companies surveyed report "constant" video surveillance of employees for "security" and "antitheft" purposes.

Unions and civil liberties groups have argued that covert surveillance is a gross invasion of privacy and should be prohibited, while employer groups believe that any controls on covert surveillance should be implemented through self-regulation.

Clearly companies must only use surveillance tools after carefully weighing the legal ramifications of such a decision, and only after consulting with competent legal counsel. At a minimum, companies should post warnings in areas covered by video surveillance and insure that such surveillance data is not abused.

NoteThese materials reflect materials are
 

LINKS

EPIC on Privacy
http://www.epic.org/privacy/

Canadian Law
Video Surveillance: The Privacy Implications
http://www.ipc.on.ca/userfiles/page_attachments/num-10.pdf

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