QUERY:

Can we legally conduct surveillance of employees?

RESPONSE:

The following material is found in Ceridian's HR Compliance Reference System:

Surveillance

Employers should consult legal counsel before instituting any surveillance of employees.  While today’s employers have access to increasingly sophisticated ways to monitor employees, the law imposes limits on when and how monitoring techniques may be used.  Employers should generally obtain employee consent for surveillance and treat acceptance of reasonable surveillance as a condition of employment.

Employers may conduct surveillance of employees to investigate or defend against a personal injury or workers’ compensation claim.  Employers in these situations would typically have another employee or a private security agency conduct surveillance of the employee making the claim as a way to investigate the validity of the claim.  For the most part the courts have held that reasonable and unobtrusive surveillance of an employee during a claims investigation does not constitute an invasion-of-privacy.  This surveillance should, however, be done without audio.

Employers may also monitor aspects of employees’ work performance.  For example, an employer might monitor the number of key strokes of a clerical employee or monitor when the employee logs on or off.  Employers might also use an electronic security system to determine when an employee has been on company premises.  Information obtained from such work-performance monitoring may generally be used in evaluating or discharging employees.  To avoid potential claims, however, employers should obtain employee consent for such monitoring.

Monitoring Telephone Conversations

With few exceptions, state and federal wiretapping laws prohibit interceptions or recordings of phone or other verbal communications without prior consent from at least one of the parties to the communication.  The Omnibus Crime Control and Safe Streets Act of 1968, more commonly known as the Federal Wiretapping Act bans the interception of any wire, verbal, or electronic communication without the express or implied consent of a party.  An employee’s knowledge of the employer’s intention to monitor a phone conversation is not considered implied consent.  Employers must obtain written consent from employees to monitor wire or phone communication.  Criminal and civil penalties may be imposed for violating this requirement.  In addition, many states allow employees and other individuals to sue for invasion-of-privacy for eavesdropping on phone conversations by unauthorized phone “taps.”

Monitoring Email and Computer Use

In 1986, Congress amended the Wiretapping Act with the Electronic Communications Privacy Act to include electronic communications within its scope.  Employers should also obtain written consent from employees to monitor electronic mail and other computer activities.  Employers who have not obtained this consent may be subject to civil and criminal penalties for violating federal wiretapping laws or invading an employee’s privacy.  In certain circumstances, restricting emails or monitoring employee accessing of known Web sites may be asserted as a violation of the National Labor Relations Act (NLRA).

Video Surveillance

Employers may conduct video surveillance of employees.  However, unless an employer has obtained employee consent, the surveillance should be done without audio to prevent violating wiretapping laws.  These laws prohibit interception of verbal communication, but do not apply to videotaping.  Employees can sue for invasion-of-privacy based on videotaping so video surveillance should not be done in areas where employees can reasonably expect privacy, such as bathrooms.  The National Labor Relations Board (NLRB) has determined that in dealings with unions, employers must bargain over video surveillance.