Employee privacy nowadays has become a controversial issue in the field of Human Resource Management. Employees are often worried about maintaining personal privacy in workplace. It can be understandable that employers want to guarantee job duties are being performed up to expectations but technology has made it possible for employers to monitor almost all of employee activities. The ability to monitor these activities may make workplace privacy seem somewhat limited. This issue of employee monitoring has emerged recently of concerns for employee privacy rights. In Hernandez v. Hillsides, Inc., S147552 (August 3, 2009), the California Supreme Court was confronted with a scenario that falls between those extremes and further delineated the extent to which an employer may conduct workplace video surveillance of its employees without violating their right to privacy. Again the cases like Nelson v. Salem State College , United States v. Ziegler has created a serious concerns for employee privacy rights in workplace.
Video Surveillance Issues
There are several variables when considering video surveillance in workplace. Video surveillance has many types visible traditional and dome surveillance cameras, with or without audio and each of the variable has potential legal implications.Visible surveillance cameras are generally not illegal if they are in a non-private place. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction. Hidden cameras i.e. spycams are a slightly different story. Video recording without sound is usually fine even if the camera is hidden – unless the person being recorded has a reasonable expectation of privacy, the taping is done for some illegal purpose or there was trespass to record the video. Courts across the country are finding with more and more frequency that no reasonable expectation of privacy exists with non-covert video surveillance or even with hidden surveillance if the physical space examined is a public space.
Policies and Legislation
Electronic Communications Privacy Act of 1986
The Electronic Communications Privacy Act of 1986 (ECPA) is the primary federal statute, commonly known as the "wiretap law," governing video surveillance by employers, according to the Electronic Privacy Information Center. This law involves wiretaps and monitoring of telephone and email communications, but it covers the sound portion of videotape recordings. Employers may use video with sound to monitor employees under this act. Individuals who violate ECPA face up to five years of jail time and a $250,000 fine. Victims are also entitled to a civil suit of actual damages, in addition to punitive damages and attorney’s fees.
Invasion of Privacy Common Law Tort
The tort of invasion of privacy is rooted in a common law right to privacy first described in an 1890 law is not all states in USA have invasion of Privacy Common Law Tort, employees in states that do have used this tort to seek relief from video monitoring in the workplace. This law requires that plaintiffs be able to prove that they suffered an intentional intrusion that would be highly offensive to a typical, reasonable person. The case of Hernandez v. Hillsides, Inc is best example this law. The comparable common law claim for invasion of privacy requires an intentional intrusion into a private place or into private affairs, in a manner that would be highly offensive to a reasonable person. Social norms determine whether a privacy interest existed in a particular case, and the question is often posed in terms of whether a reasonable expectation of privacy existed, especially in view of competing social interests arising in the situation.
Workplace Surveillance Act 2005
This act prohibits the surveillance by employers of their employees at work except where employees have been given notice or where the employer has a covert surveillance authority. Covert surveillance authorities can only be issued by a Magistrate for the purpose of establishing whether or not an employee is involved in any unlawful activity at work.Under this act Cameras used for the surveillance must be clearly visible in the place where the surveillance is taking place. Signs must also notify people that they may be under surveillance in that place and must be clearly visible at each entrance to that place.
National Labor Relations Act
The National Labor Relations Act of 1935 is a foundational statute of US labor law which guarantees basic rights of private sector employees. To be considered a violation of the National Labor Relations Act, video surveillance has to catch protected concerted activities. NLRB prohibits employers' use of video cameras to monitor employees' union activities, including union meetings and conversations involving union matters, while employers must bargain with union employees before using video surveillance. Additionally, employers may not use video surveillance in a way that is meant to intimidate current or prospective union members.
State Privacy Statutes
Privacy is a cherished value for most of us, and state legislators know it. Most states have passed at least some privacy-related laws. Connecticut provides the most employee protection by specifically prohibiting employers from using any electronic surveillance system to monitor areas designed for employees' personal use, California, it is illegal to install a surveillance mirror in a restroom, shower, fitting room, or locker room. In New York Video recording of an employee in a restroom, locker room, or other room designated for changing clothes is prohibited. In West Virginia it is unlawful for any employer or the agent or representative of an employer, whether public or private, to operate any electronic surveillance device or system, including, but not limited to, the use of a closed circuit television system, a video-recording device.
Conclusion
Video surveillance in the workplace is not a new phenomenon, but it has the potential to affect the privacy of working lives of the employees. The best way for an employer is to discuss video surveillance with employees prior to installing video cameras. Even if the an employer wishes to discipline an employee on the basis of what it believes the video footage shows the employer should take care to follow a fair procedure. Finally, employers should be aware of the effect that the all the legislation may have on video surveillance at work.
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