Workplace Rights

Weekly (9/3/18)

Topic of the Week  Recording at Work: Know the Risks

Can employers video record their workers? 

Can an employee record another employee at work? 

Recording at Work: Know the Risks

Can employers video record their workers?

In order for an employer to legally videotape you in the workplace, there must be a legitimate business reason for the recording. Such purposes can include security reasons, time and motion studies, or other investigative processes. Camera recordings in areas where employees have a reasonable expectation of privacy, like locker rooms or bathrooms, is almost always prohibited.
If the recording is done by visible cameras, federal law may allow videotaping of individuals in the workplace, even without their consent or knowledge, as long as it is not done to commit a crime.
Where the recording is done by hidden cameras, courts place a higher burden of proof for the employer to demonstrate that the surveillance is for a legitimate business reason. This means that employers cannot simply say the recording is for security reasons and must provide a reason beyond that in order to justify their use of hidden cameras. In places where employees are unaware of video surveillance, their reasonable expectation of privacy may be heightened. As a result, employers are generally well-advised to provide notice of hidden cameras in the workplace.

Certain states have placed stricter restrictions on videotaping in the workplace. Connecticut (Conn. Gen. Stat. §31-48D) and Delaware (Del. Code § 19-7-705) require employers engaging in electronic monitoring by any means other than direct observation to give prior written notice to all employees who may be affected. The California Supreme Court (Hernandez v. Hillsides, Inc., 211 P.3d 1063 (Cal. 2009) has also advised employers to disclose the existence of workplace video surveillance in writing to employees and require employees to sign a receipt of notice.
Can an employer audio record workers?

In order for an employer to legally audiotape you, they must still have some legitimate business purpose - but such a purpose is not always hard to find.

Federal law seems to allow for the audiotaping of any individual, even without his or her knowledge or consent, as long as it is not done to commit a crime. Some states have placed more restrictions on audiotaping, and may require that everyone involved in the conversation be aware of, and consent to, the taping. Some states, like Connecticut, have implemented stricter laws for employers, fining them for overuse of audiotape recorders . Federal labor laws also limit an employer's ability to audiotape employees by prohibiting the secret monitoring of union meetings, including audiotaping.

Can an employee record another employee?

In California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, you need the consent of all parties participating in the conversation in order to record it. These twelve states are known as “two party consent states” so employees cannot secretly record conversations with other employees without their consent.
In states without a two-party consent requirement, as long as one party gives consent, which can include the person recording the conversation as long as they actively participate, then the conversation can be legally recorded. If no party knows about the recording, then the situation may constitute wiretapping, which is subject to a different set of laws.

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