Friday, May 8, 2015

Video Surveillance Considerations

Over the past few months, the videotaping of employees has been a subject of considerable discussion.  Most notably, some government officials and many advocacy groups have called for “body cams” on police officers and the videotaping of police interactions with the public.  The Justice Department announced an investment of $20 million to place cameras on police officers nationwide in an effort to obtain evidence about police interactions and reduce citizen complaints.  Others have suggested employers should use video in recruiting and termination meetings.

Video technology has been around for decades.  As technology advances, video has become simple, cost effective, and available on smartphones, laptop computers, and spy-movie-type devices. Employers can use video to screen applicants, protect valuable inventory, or scrutinize employee behavior, but there are limitations.  Here are a few cautions for employers thinking about the use of video:

Recruiting.  Using video interviews may make recruiting easier, but alternatives must be available when a request is made for a reasonable accommodation. Under both Title VII and the Americans with Disabilities Act, employers must provide reasonable accommodations for an employee’s or applicant’s disability or religious beliefs.  If an applicant is unable to conduct a video interview because of disability or religious conviction, the employer must provide an alternative interview method.

Surveillance to Prevent Theft.  Employers may legitimately use video cameras to capture evidence of theft of inventory or other company property.  The placement of the cameras should, however, consider employees’ reasonable expectation of privacy.  Locker rooms, bathrooms, and sometimes even offices may be places where employees have a reasonable expectation of privacy, and cameras should not be placed in such locations.  Instead, cameras should be directed toward the inventory or other property that is at risk.

Surveillance of Employee Behavior.  Employers may use video cameras to monitor employee behavior or misconduct.   For example, in Hernandez v. Hillsides, the employer wanted to identify and stop whoever was accessing pornography on the computer in an office shared by two employees.  The two employees who shared the office were not suspected of viewing pornography, but a video camera was installed without their knowledge.  Although they were never actually recorded (the pornography viewing and video recording occurred outside of their working hours), the employees were distraught when they discovered that the camera was placed in their office and filed an action against the employer for invasion of privacy. The California Supreme Court acknowledged the employee’s right to privacy, but also noted the employer’s legitimate need to determine who was accessing pornography and discussed the need to balance the two interests.  The employees’ claims were dismissed on summary judgment.

Concerted Protected Activity.  Under the National Labor Relations Act, employers cannot investigate employees who are engaged in concerted protected activity, such as union organizing or gathering to complain about a supervisor or other working conditions.  This prohibition on investigation includes the use of video surveillance.  Although unionized employers may still use video for legitimate business purposes, it can’t be used to catch employees signing union cards, and, of course, an employer cannot take disciplinary action against employees if they are caught on tape engaging in concerted protected activity.

State Law. While most states require only the consent of one party to a recording (including video), many states have consent laws requiring that everyone on the video know of and consent to be in the video. Connecticut requires employers to notify employees if they are being monitored.

Posted by Judy Langevin