You might be surprised to learn that it isn’t just Facebook and savvy internet marketers spying on you from day to day – it’s likely your employer, as well.
Breakneck advancements in technology over the past several years, coupled with diminishing concepts of privacy in society at large, have led employers to a new tool to monitor employee productivity: the hidden camera. While most people are aware that employers tend to monitor internet searches, oftentimes without their knowledge, employees are watched via hidden camera as they go about their day at work, as well.
Is such surveillance legal? The jury is still out, although it’s somewhat clear that an employer doesn’t have an unfettered right to spy. There are both federal and California state laws that limit in what ways and how often an employer can use electronic monitoring devices in the workplace.
To generalize, oral communications are afforded greater protection than videotapes. In California, for example, the law is that both parties to a telephone conversation have a reasonable expectation of privacy – so even if the employee knows the employer is recording their conversation, the person on the other end of the line wouldn’t know – making the recording illegal. That’s not to say that it’s open season on video recordings; employers aren’t allowed to record employees in private areas (like changing rooms, restrooms, and so on); they can’t intrude when an employee has a “reasonable expectation of privacy,” and they need a strong justification for the intrusion – such as a safety reason. What this likely means is that if your employer is taking video recordings of you at work, they shouldn’t be doing so without your knowledge, when you are on break, or at times when there is no real justification for doing so.
Federally, employers are limited by the Electronic Communications Privacy Act – which prevents interception of oral communications where an expectation of privacy exists, and also includes the Stored Communications Act, which restricts an employer from using/accessing the servers of a third-party company where videotapes of its employees are held. California statutes as well as California common law also restrict employers from spying on their employees in the workplace.
We have found that, due to the relative newness of these rules and the constantly shifting technology landscape, employers often aren’t aware of what the limits are to their surveillance, and run afoul of the law. When they do so, significant penalties (or, legally, “damages”) often result, and those are damages that you – the employee – may be able to collect.