Answer: Definitely. You need to take several steps before the first monitor is installed.
What should HR do?
Here are some suggestions on how to implement a video surveillance program while minimizing potential liability:
- Be prepared to justify the monitoring from the start.
Employers should be able to show that monitoring was initiated to serve legitimate business interests. Monitor only to the extent necessary to protect a legitimate business purpose.
- Be reasonable—use the least intrusive means to accomplish the business purpose for which monitoring is designed.
Don't monitor restrooms or employee lounges where a reasonable person would have a higher expectation of privacy unless absolutely necessary to protect persons and property. Put reasonable time and location limitations on monitoring. Employers should be able to show that any monitoring was only as broad as necessary to fulfill their legitimate business interests.
- Notify employees about any monitoring that may take place.
If common areas and employees’ workspaces and surrounding areas are being monitored, tell them. Making policies known to employees goes a long way to defeating any expectation of privacy that they may have. Note that any limitation on the reason for the monitoring might be construed to limit the scope of the employee's consent, so word your notice broadly. The 1999 American Management Association (AMA) survey of workplace monitoring practices revealed that some employers (up to 26 percent) fail to notify employees that monitoring is taking place. Do not make this mistake.
- Make notification to employees concerning workplace monitoring a part of the employee handbook.
Communicating the policy in writing (especially if it includes a requirement that employees sign to acknowledge they have received the policy and are aware of it) further bolsters a minimal expectation of privacy.
- Be aware of and comply with applicable federal and state statutes and any state common-law rights.
What is permissible under federal law may be prohibited under a state statute or a certain state court decision. Check with legal counsel to ensure that whatever you're doing—or whatever you're proposing to do—doesn't run afoul of one or more of the various state and federal provisions on wiretapping, privacy or applicable constitutional provisions.
- Be sensitive to employee's "privacy rights."
Monitoring should not extend into highly private areas in the workplace, such as restrooms and lounges. Also, monitoring generally should be limited to the workplace, unless there's a compelling, work-related reason for moving beyond the workplace (for example, the investigation of fraudulent or unlawful conduct arising out of the employment relationship). Even then, the monitoring should be reasonable in scope and relatively unobstructive.
- Train supervisors, managers and security personnel about applicable legal restrictions.
Merely having lawful policies isn't enough. Ultimately, an employer's liability will turn on whether its electronic-monitoring policies were applied lawfully and evenhandedly by those who are responsible for doing so.
- Protect the confidentiality of any information obtained through monitoring.
Have safeguards to protect against unauthorized access to the information by persons who don't have a legitimate business purpose for obtaining it. Adopt reasonable procedural safeguards on the use and disclosure of information gathered through monitoring.
Other monitoring activities.
Note that there are additional specific requirements when employers choose to monitor employees’ work, e-mail, voice-mail or computer files. In those situations, one of the most important requirements is notifying employees that business equipment—whether a computer, a telephone, software or a desk—belongs to the employer and should only (or primarily) be used for business purposes. If an employer has told employees that they shouldn't be conducting personal, private matters in the workplace, it reduces the likelihood that the employer will be successfully sued for invasion of privacy. Don’t even think of "bugging" offices or surreptitiously intercepting oral conversations.
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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.