If you are considering using video cameras or other surveillance in your workplace, state law might have something to say about it. There are many reasons you might want to use video cameras in your workplace – employee safety, insurance benefits, customer service quality assurance, to name a few. However, don’t forget that state law may restrict your ability to use video surveillance.

First: Where Can You Put a Device?

Some state laws restrict where you can place cameras in the workplace. For example, in California, employees have an explicit right to privacy in restrooms, locker rooms, and other rooms designated by the employer for changing clothes. Accordingly, California employers may not utilize cameras in those spaces. Moreover, in West Virginia, you cannot install cameras in areas “designated for the health or personal comfort of employees” or for safeguarding their possessions, such as locker rooms and employee lounges.  Be sure to check your state law to see if there are any video camera location restrictions in your state, and be careful to follow them closely.

Second: Do Your Employees Have a Right to Privacy?

State law often protects individuals’ “right to privacy.” This can mean different things in different states, but generally courts look at whether the person had a “reasonable expectation of privacy” at the time of the surveillance and whether the employer had a legitimate business interest that outweighed the expectation of privacy.  If an employee has consented to the surveillance, it is likely that there was not a reasonable expectation of privacy. However, some states, such as Oklahoma, have not yet recognized a formal privacy right. So, as you can see, whether and to what extent an individual has a right to privacy depends on the states in which you are doing business. And the extent to which that right extends to the workplace will also vary by state. As a general matter, you will want to make sure video cameras capture only as much footage as is necessary to further your business interests and avoid recording more activity than is necessary. You may also want to issue a video surveillance policy, with an acknowledgement and consent form for employees to sign, and, if the cameras are not openly visible, potentially have posters reminding employees that surveillance cameras are in the facility.

If you are a public employer, keep in mind that your employees may have constitutional protections as well.

Third: Unionized Workforces Have More Rights.

If you have unionized employees, you will likely need to bargain with the union about workplace surveillance. You will also need to make sure that the surveillance does not violate the terms of an existing collective bargaining agreement. Regardless of whether you have unionized employees, labor law protects employees’ rights to discuss unionizing and other terms and conditions of employment. So, to the extent your cameras will capture that sort of activity, do not take adverse action against employees for doing so.

Fourth: Don’t Forget State Laws Protecting Off-Duty Activity.

If your video cameras will be capturing off-duty activity, you’ll generally want to make sure that you have a legitimate business reason for doing this and balance it against employee privacy rights. Moreover, some states prohibit employers from disciplining or terminating employees for engaging in various types of lawful behavior away from work and off-the-clock. For example, Wyoming prohibits taking action against employees for lawfully using tobacco products outside of work, and Pennsylvania prohibits employers taking action against employees for the lawful use of medical marijuana as allowed by state law. North Dakota has the most protective of these types of laws, prohibiting employers from taking action against employees because of any lawful activity, without much limitation. The important thing to keep in mind – if any video surveillance captures lawful off-duty activity, remember to check your state law to see if there are any employee protections in this area.

Fifth: Remember the Wiretapping Laws.

Both the federal government and many states have wiretapping laws. These laws vary but generally prohibit the recording of conversations without some level of consent. Be sure to check your state law in this area. As a general matter, it is best to avoid including audio recordings with your video surveillance of your workplace, as audio recordings can implicate these wiretapping laws and raise potential liability issues.

Sixth: Can the Employee View the Footage?

Many states give employees the right to inspect their personnel file. Moreover, some states require you to keep and maintain personnel files for a certain period after an employee is terminated. So, to the extent any video footage is pulled from your surveillance system and placed into an employee’s personnel file for issuing discipline or otherwise, make sure that the employee can view the footage if they request to see their personnel file, and make sure that any footage in a personnel file is maintained there for the required period of time after an employee’s termination.

Takeaways:

As you can see, there a number of state law concerns surrounding video surveillance in the workplace. If you are considering using video cameras to monitor employees (whether in your facility or on company vehicles), consult with your legal counsel to make sure you are considering all state laws that may apply. You will also want to make sure that any video surveillance meets your business-related goals but doesn’t unnecessarily intrude on your employees’ privacy rights.