In this day and age employers need to be increasingly aware of happenings in the workplace and issues related to unlawful employee conduct. Some of these include things like identity theft, data security, sexual harassment, viewing of pornography, lowered productivity, and on-the-job accidents. Unless employers want to risk spending exorbitant amounts of money on litigation, they need to find appropriate ways to minimize these risks. However, employers also have a duty to respect the privacy of their employees. This poses the question, “How much video surveillance is legal and appropriate in the workplace without crossing the line?” Most employees don’t mind if a retail establishment uses video surveillance to monitor against theft, but what about employers who use video surveillance to monitor their own employees? Let’s take a look at how businesses can use video surveillance in a way that balances management with privacy.
How Prevalent is Workplace Monitoring?
Nearly half of employers use some form of video monitoring in the workplace, whether it be to protect against theft and violence or to monitor employee performance. These studies have also shown that video monitoring is most common in larger companies and most prevalent in banking, insurance, real estate, and brokerage industries. Employers admit to using video surveillance to monitor internet use, cell phone use, employee misconduct, and lowered productivity. In some cases, employers were terminated based on findings from video surveillance.
Laws on Workplace Privacy
Workplace monitoring is subject to various federal and state laws. The two main laws that protect against employee privacy are the Electronic Communications Privacy Act (EPCA) and common law protections against invasion of privacy. While the ECPA prohibits employers from intentionally intercepting employee’s oral and electronic communications, there are several exceptions to this law. One exception is the business purpose exception, which states that employers can monitor oral and electronic communications as long as they can provide a legitimate business purpose for doing so. The second exception is consent exception, which allows employers to monitor employers provided they have their written consent to do so. What does this mean for businesses? It simply means that although there are legal exceptions to employee privacy, employers should not approach EPCA compliance lightly. Employers who choose to use video surveillance need to be aware of both employer and employee rights and make sure employees give consent to such monitoring.
How Can Businesses Manage Employee Privacy and Workplace Monitoring?
Unnecessary monitoring can have a negative effect on employee morale. If employees feel like they are being “watched” all the time and there is no good evidence to support that type of monitoring, it can cause tensions in the workplace. Employees want to feel safe when they are at work and employers are obligated by law to provide a safe workplace for them. This means it is important for a business to articulate their reasoning for using video surveillance in the workplace. Employers need to communicate why surveillance is necessary and how it is in the best interest of the employees. For example, they should let employees know they want to protect them against identity theft, harassment, and other problematic employee behavior. It is the responsibility of the HR department to adopt reasonable and effective practices to protect employees while also respecting their privacy.