Privacy vs. Security in the Workplace

Emma Luevano of LatinBusinessToday.com shares how to best balance workplace safety and employee privacy.
Latin Business Today
April 13, 2012

In the era of video surveillance devices, RFID, GPS and even Facebook and Twitter, maintaining the balance between workplace safety and employee privacy has become something of a damned if you do, damned if you don’t area of law.

In the legal sense, “security” is the condition of being protected against danger or loss and "privacy” is the ability of an individual or group to keep personal affairs out of public view or to control the flow of personal information. While privacy per se is not specifically addressed as a protected right in the U.S. Constitution, it is included in some state constitutions. California’s constitution, for example, gives each citizen an “inalienable right” to pursue and obtain privacy.

Here are some guidelines that have recently evolved to maintain the balance between workplace safety and employee privacy:

Electronic communications

Federal and state restrictions govern workplace security and employee privacy. At the federal level, the Electronic Communications Privacy Act of 1986 (ECPA) assesses penalties if you intentionally intercept “any wire, oral or electronic communication.” On the other hand, and because it is your telephone system after all, a “business use exemption” allows phone call monitoring.

Sound easy?  It’s not. Courts generally look at three elements to determine whether a specific phone use meets the exemption.

  • Is there a reasonable business justification for the monitoring?
  • Did you inform your employees that their calls might be monitored?
  • Did you comply with your own monitoring policy?

And here’s the damned-if-you-do-damned-if-you-don’t rub: In applying ECPA, some courts have held that monitoring employees’ personal telephone calls exceeds the business use exemption–and can be actionable. Some states don’t have a “business use exemption,” but do permit monitoring provided your employees consent to it.

Here’s how best to handle this vexing, contradictory legal thicket:

  • Issue and distribute formal policies explaining the scope of your monitoring
  • To the extent possible, obtain your employees’ consent for the monitoring

Video and audio surveillance

There are many reasons to use audio and video surveillance systems, ranging from employee safety concerns to the need to monitor and control company assets. At this time, there are no specific federal laws governing video-only monitoring. Nevertheless, employees have brought cases against their employers under the general right of privacy.

A key legal question is: Did your employee have a reasonable expectation of privacy? Courts are finding with increasing frequency that no reasonable expectation of privacy exists if the physical space surveyed is a public space. But federal courts have been divided on whether an invasion of privacy occurs when the video surveillance is hidden, or when areas generally considered private–like restrooms or dressing rooms–are recorded.

Statutes differ from state to state. Some have adopted limitations on employee video and/or audio monitoring, particularly in private areas, such as locker rooms. Others merely require notice of video or audio employee surveillance.

Tracking devices

You may want to be able to grant particular employees access to restricted workplace areas or track your employees’ locations as they move about the city in company-owned vehicles. Recent technology, including global positioning systems (GPS) and radio frequency identification (RFID), gives you new ways to monitor employees’ movements. Currently, there is no overarching federal statutory restriction regarding the use of GPS or RFID devices.

However, in a highly publicized news story, an Ohio surveillance company reported having implanted RFIDs under the skin of at least two employees (a practice called “tagging” or “chipping”). The company did so as a security measure in order to control access to highly sensitive surveillance footage. As a response, California adopted a law prohibiting the use of subcutaneous RFIDs in the workplace. This law also specifically prohibits conditioning employment upon an agreement to a subcutaneous implant. Other similar state laws are likely to follow.

Best approach? Have your attorney check your state’s laws. If there are none, then use of such devices is limited only to the extent that they invade an employee’s reasonable expectation of privacy.

In light of the many issues that may arise, you should also take the following precautions:

  • Clearly spell out your privacy policies in an employee manual or similar document
  • Keep current on federal and state privacy laws. They react to changes in society and technology, prompting a steady flow of new restrictions and regulations.

Emma Luevano is a regular contributor to LatinBusinessToday.com on legal issues relevant ?to Hispanic small and medium businesses. She is a partner ?at the law firm Mitchell Silberberg & Knupp LLP, and advises and represents management on labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, class action wage and hour issues,? and retaliation.

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