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Keeping a Watchful Eye

June 6, 2008
Related Topics: Internet, Technology and the Law, Policies and Procedures, Featured Article

Abigail Hernandez and Maria-Jose Lopez were clerical workers who shared an office at a Los Angeles treatment facility for abused and neglected children.

Because the office had a door that locked and windows with shades, the women assumed they had a certain amount of privacy. Hernandez sometimes used it to change before going to the gym, and Lopez, who’d had a baby, occasionally lifted up her shirt to show Hernandez how her figure was coming back.

That sense of privacy became a contentious issue after the facility, Hillsides Children’s Center, developed a porn-viewing problem. Management suspected someone was using the facility’s computers to log on to adult Web sites after hours. Hillsides director John Hitchcock approved setting up secret surveillance cameras in a few spots around the facility to catch the guilty party, including in the office that Hernandez and Lopez shared.

After a few weeks the women discovered the hidden camera, and although neither one of them appeared on videotape, they filed a lawsuit that eventually landed in front of the California Supreme Court, where it is now pending.

One of the central issues: Did Hillside have the right to monitor the women? Or did their office, with its locking door and covered windows, entitle them to their privacy?

California’s highest court isn’t expected to rule on the case anytime soon. But the circumstances surrounding it illustrate the often volatile issues that go hand in hand with monitoring employees.

Employee monitoring is nothing new. Video cameras and Web cameras are just the latest methods of doing it, says Helene Wasserman, a labor attorney and partner at Ford & Harrison in Los Angeles. "Employees need to be told by their employers that they have no reasonable expectation of privacy in the workplace," she says.

But there’s no reason for systematically monitoring someone in their office, says Lewis Maltby, president of the National Workrights Institute, a Princeton, New Jersey employee-rights advocate organization. "I could imagine scenarios where your boss might be concerned about what you’re doing" in your office with the door closed, Maltby says. "But what’s wrong with knocking? If someone’s taking three-hour naps, you could find out without having to spy on them."

Webcams at work
Privacy advocates and employer groups may hold different opinions of workplace monitoring, but the fact is that more companies than ever are doing it.

Companies are most likely to screen employees’ online activities. According to a December 2007 survey of 304 U.S. companies by the American Management Association and ePolicy Institute, 66 percent monitor employees’ Internet connections and 43 percent monitor e-mail use. Close to a third of the survey respondents said they’d fired someone for violating their company’s e-mail policy, twice as many as in 2001, the first time the survey was taken, says ePolicy Institute executive director Nancy Flynn.

Lawsuits are a major reason companies monitor workers, says Flynn, an author and consultant who works with companies on monitoring issues. "E-mail has become the electronic equivalent of DNA evidence," she says. "If a company gets embroiled in any kind of claim, you can take it to the bank that employee e-mail will be subpoenaed."

A much smaller percentage of companies use surveillance cameras, webcams and closed-circuit TV to monitor employees. According to the AMA/ePolicy Institute report, 7 percent of surveyed companies used some type of video to monitor employees’ on-the-job performance. That’s in addition to 48 percent that use video monitoring to deter theft, violence and sabotage.

But webcam and video monitoring is growing as technology improves, costs go down and more companies plug into the Internet, according to security industry sources.

Webcams’ image capture, picture quality, sound and software all are better than they used to be. High-end devices, for example, record images at 30 frames per second, and pictures can be enlarged to fill up an entire computer screen without getting blurry, says Ha Thai, a spokeswoman for Logitech, a webcam manufacturer.

Other video advancements include surveillance cameras the size of a button, Web-based systems that can monitor images from multiple locations simultaneously, and digital video recorders that can store two months’ worth of video, says Curtis Baillie, a West Chester, Pennsylvania, security management consultant and former retail industry loss-prevention manager. "At one time I had responsibility for more than 600 stores in a couple countries. At night I could go on the Internet and log on to sites where we had cameras I needed to review and download what was going on," he says.

At the same time that webcam and surveillance camera technology is improving, costs are dropping, making the gear affordable for even small companies. A closed-circuit TV surveillance system with three to 10 cameras that used to cost one of his retailer clients $8,000 to $10,000 now runs about $1,500, Baillie says. Worldwide sales of webcams are expected to reach $6.2 billion in 2013, up from $1.2 billion in 2006, according to a 2007 report from WinterGreen Research, a British technology market researcher.

Monitoring policies a must
Under U.S. law, the only expectation of workplace privacy employees have is in areas such as bathroom stalls or other places where they change clothes for work, according Wasserman, the labor attorney. Companies are within their rights to track employees almost anywhere else.

They’re within their rights, but many don’t do a good job of explaining those rights to employees, according to company officials, privacy advocates and other sources.

Only two states, Delaware and Connecticut, require employers to disclose video monitoring policies to employees, according to the ePolicy Institute. Elsewhere, it’s up to a company to decide how to handle the issue.

Alesia Lewis, an HR manager in Northern California, recalls a previous job at a manufacturing company where surveillance cameras were set up in common areas but employees never knew if they were on and were never briefed on the company’s monitoring policies.

"To me there’s a difference between the letter of the law and best practices," says Lewis, who currently works for RPM, a real estate management firm in Lodi, California. "It seems responsible to let people know that they may be being filmed," and not doing so creates morale issues, she says.

The duty of maintaining about 10 surveillance cameras placed throughout the city hall of a midsize East Coast town falls to that city’s parks operations manager, who requested that the name of his town not be used.

On any given weekday, about 550 employees and residents come through the building, which houses offices and meeting rooms. Cameras are set up mainly for security purposes. But when incidents involving employees have occurred, managers have reviewed videotapes to validate someone’s explanation of their actions or whereabouts, the parks manager says. "Nobody’s going through the [tapes] to see if the person is doing what they should be doing. It’s always an incident that provokes it," he says.

An explanation of that video monitoring policy isn’t included in the city’s employee handbook, although general rules for using city-owned information technology are, the manager says.

That should change in the next year or so when the city moves into a new building and responsibility for the video surveillance system transfers to the IT department, the manager says. "We’ll have a more professional system installed and it’ll be addressed across the board," he says.

In the case of the Hillsides Children’s Center employees, the original trial found in favor of the facility’s management, despite the employees’ claim that they had an expectation of privacy because of their office’s lock and shades. But that decision was reversed on appeal, setting up the most recent appeal to the California Supreme Court, according to court documents. Wasserman says that court will consider whether the employees can claim invasion of privacy, even though their images never showed up on the videotaped recordings.

Whatever happens, the Hillsides case and situations like it point out how important it is for employers to establish monitoring policies and make sure employees know about them, according to legal, privacy and security experts.

However a company chooses to monitor employees, it should tell them about the practice, suggests Maltby, of the National Workrights Institute. He says it’s not enough for an employer to merely disclose the fact that it is monitoring; the employer also should explain the specifics.

When Baillie, the security consultant, works with retailer clients, he suggests that their HR managers make sure employee monitoring policies and procedures are included in company handbooks and that employees sign off on them. "It’s a good idea to put signs in break rooms and locker rooms too. It’s just common sense," he says.

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