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Monitoring Law:
To
Videotape or Not to Videotape...that is the question.
In January, 1998 The Sheraton Boston Hotel and Tower agreed to pay
over $200,000 to settle a lawsuit brought by the Hotel Employees and
Restaurant Employees Union, Local 26. [Boston Hotel Workers Union,
Local 26][Hotel, Restaurant and Institutional Bartenders Union,
AFL/CIO Local 26] The local alleged that the hotel violated
Massachusetts' privacy law when it videotaped workers (without their
knowledge) in its employee locker room, seven years earlier. (Clement
v. ITT Sheraton Boston Corp., Mass.Super.Ct., Suffolk Cty, Case No.
93-0909-F) At a time when employers regularly use videos to monitoring
their employees' activities, this settlement raises several concerns
for employers.
Most of employers' monitoring and surveillance is designed to
curtail theft, drug and alcohol-use, identify potential workplace
risks and measure and improve employee performance. It has been
reported that three-quarters of all drug users admit to using drugs at
work and 60% admit dealing drugs at work. Given these statistics, it's
not surprising that 20% of the drug users reported
drug-impairment-related accidents on the job. Employers and their
insurers have to take some kind of action to control this situation,
and more and more often, they are resorting to workplace monitoring
and surveillance tactics.
According to a 1997 survey conducted by the American Management
Association, 63% of the mid-sized and large U.S. companies surveyed
engage in one or more monitoring or surveillance activities. Out of
the 906 companies surveyed, more than a-third videotape employees,
record employee's phone calls or voicemail, or review computer files
and e-mail. Although most of the companies just "spot
check," roughly ten percent of the companies surveyed report
"constant" video surveillance of employees for
"security" and "anti-theft" purposes.
While most of the companies reported informing employees of their
monitoring and surveillance practices, almost one-quarter of them
reported that they did not notify employees of their practices. Given
the potentially high cost of having to defend against privacy
violation claims, it is shocking that so many employers fail to
prepare and get employees to acknowledge their electronic surveillance
and monitoring policies. As more employers adopt monitoring and
surveillance programs every day, this disclosure gap is likely to
increase.
Surveillance is a booming business. In 1996, when the ACLU reported
20 million Americans were subject to electronic monitoring and
surveillance in the workplace, employers spent more than $2 billion on
closed circuit TV (video surveillance) equipment ("CCTV").
Technology has developed to the point that a decent CCTV system for a
small company would cost under $4,000 and the cameras, using fiber
optic technology, can acquire a good image from a hole the size of a
pencil point.
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So, can and should employers use video surveillance in the
workplace? How much surveillance is legal? The answer, unfortunately
for companies with national operations, lies with the jurisdiction in
which the surveillance occurs, whether the camera is hidden or in open
view, whether the area is open to public view and, interestingly
enough, whether the video includes sound.
The prime federal statutory law in this area is The Electronic
Communications Privacy Act of 1986 ("ECPA"), an amendment to
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
commonly known as the "wiretap law." The ECPA was adopted
initially to govern third-party interceptions of electronic
communications, not to govern employers' rights to monitor their
workers.
The ECPA provides civil and criminal penalties for any person who
intentionally intercepts, uses, or discloses "any wire, oral, or
electronic communication." "Electronic communication"
is defined as "any transfer of signs, signals, writing, images,
sounds, data, or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photo-electronic or photo
optical system that affects interstate or foreign commerce...."
The ECPA also affords recourse for the use or recitations of
information obtained from an intercepted communication.
Most of the cases developed under the ECPA involve criminal justice
and investigatory wiretaps of telephone and e-mail communications. In
the civil application, most of the case law, until recently, involved
telephone communication and e-mail monitoring. In these cases, the
courts have looked to whether a reasonable business justification
existed for the monitoring, whether the employee was notified of the
employer's right to monitor and whether the employer acted
consistently in connection with its monitoring. In addition to
covering e-mail and telephone interceptions, the ECPA also governs the
sound portion of any videotape recording. But, because it has been
held that silent video surveillance isn't covered by the ECPA, silent
videos are excepted from the act. (Thomson v. Johnson County Community
College 1997 WL 139760, 10th Cir. 1997)
In order to monitor audio, as part of the video, the employer has
to jump through the hoops of the ECPA. The two prime exceptions to the
ECPA afford employers broad rights to monitor their employees,
providing that the employer strictly satisfies the exceptions. An
employer may monitor employee conversations if the monitoring occurs
(1) in the ordinary course of business, or (2) with the employee's
express or implied consent.
Given the lack of protection afforded by the ECPA against employee
video surveillance, many employees are seeking recourse under common
law rights of action, federal and state constitutional protections and
state privacy laws. They are also filing grievance with their unions
and their unions are seeking redress under the National Labor
Relations Act.
Invasion of Privacy.
Typically, employees seek relief under the
common law tort of invasion of privacy. (Not all states recognize this
tort, however.) The invasion of privacy tort generally requires an
intentional intrusion, "physical or otherwise, upon the solitude
or seclusion of another upon his private affairs, or concerns . . . if
the intrusion would be highly offensive to a reasonable person."
One of the key conditions to prosecuting an action for invasion of
privacy is whether or not the person has a "reasonable
expectation of privacy." The courts across the country are
finding with more and more frequency that no reasonable expectation of
privacy exists with patent video surveillance or with hidden
surveillance if the physical space surveyed is a public and open
space.
However, when the video surveillance is hidden, or records areas
generally considered "private," such as rest rooms or
dressing rooms, the courts have been divided on whether an invasion of
privacy has occurred. Perhaps even more troubling to an employer is
that possibility that broad damages for emotional distress may be
applied, without the usual safeguard of requiring a physical
manifestation of the injury. In his summary judgment ruling, the
judge in the Boston Sheraton case looked to the Restatement of Torts
and found that emotional distress damages can be sufficiently proven
with the mere testimony of the plaintiffs.
The Fourth Amendment and State
Equivalents.
When a public employer
is involved, the Fourth Amendment to the U.S. Constitution and its
state equivalents are implicated. (A few states apply their Fourth
Amendment equivalent to private parties as well. These states include
Massachusetts, California and Florida. All employers in those states
must comply with the constitutional tests, in addition to the
statutory and common law tests.) The Fourth Amendment protects people
from unreasonable searches and seizures by state action. Actions by a
public entity employer may qualify as "state actions."
Generally, there are two components to a Fourth Amendment analysis,
under the public employer test: (I) is there a subjective (actual)
expectation of privacy and (ii) is this expectation of privacy
reasonable. If the surveillance is of an area open to public view,
surveillance is generally permissible, since there can be no
expectation of privacy in an area open to public view. The issue of
whether other less obvious examples invoke a reasonable expectation of
privacy is less settled.
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The Supreme Court considered this issue when a physician employed
by a public hospital charged his employer with violating his Fourth
Amendment rights when his office, desk and file cabinets were searched
by hospital personnel in connection with an investigation of his
alleged wrongdoing. (O'Connor et al v. Ortega, 480 U.S. 709 (1987))
In a plurality decision, the Supreme Court concluded that a
different standard exists under the Fourth Amendment for searches by a
public employer which is less stringent than that for law enforcement.
The Court recognized that to hold otherwise would require all public
employers to obtain a search warrant whenever the employer required
access to an employee's desk, file cabinets or office, for a
business-related purpose. Essentially, the employee's expectation of
privacy is weighed against the public employer's need for supervision,
control and efficient operation of the workplace.
Justice Scalia separately concluded that, although the desk, file
cabinets and office were covered by the Fourth Amendment, given the
fact that a public employer was involved, searches which would qualify
as reasonable and ordinary in a private-employment situation do not
violate the Fourth Amendment.
Several Federal Circuit Courts of Appeal have looked at the public
employer standards more recently. In 1997, the First Circuit ruled
that open video surveillance of employees in a general work area by a
public employer is permissible. Vega-Rodriguez v. Puerto Rico
Telephone Co., CA 1, No. 96-2061,4/8/97). Ultimately, the ruling
turned on reasonable expectations of privacy. The Court concluded that
no reasonable expectation of privacy could exist for employees working
in an "open and undifferentiated work area." In addition,
the First Circuit held that "employers have a legitimate
interest in the efficient operation of the workplace, and one
attribute of this interest is that supervisors may monitor at will
that which is in plain view within an open area." But open
surveillance is the key to the decision. In dicta, the decision notes
that hidden video surveillance was a different issue, and may result
in a different conclusion.
The Ninth Circuit, too, has recently addressed this issue, holding
that employees in a county jail could be subjected to constant video
surveillance, even in areas where inmates had no unsupervised access.
A hidden video camera, without sound, was placed in an administrative
office following the theft of inmates' money from the cashier's
office. Although supervisors and some jail staff knew about the
camera, the bulk of jail employees did not. When the Sheriff's
Association sued on behalf of several jail employee's, the court
determined that no constitutional rights were impacted and no privacy
laws were violated. The court relied on the fact that there is no
reasonable expectation of privacy in any correctional institution,
given the need for security.[Third District Court of Appeal, County
Sheriff's Association v. Sacramento County, CO19777, Calif. Ct. App.,
31 Dec. 1996, 1996 Cal. App. LEXIS 1216, *25]
In Kansas, a U.S. District Court held that soundless video
surveillance of security officers of a community college did not
violate the ECPA. The court also held that the open and public nature
of the dressing area/locker room/storage room dispelled any reasonable
expectation of privacy, and therefore the Fourth Amendment was not
implicated. Thompson v. Johnson City Community College, 11 IER Cases
(BNA) 1610 (U.S.D.C. Kan. 1996), (10th Circuit upheld the case...]
State Privacy Statutes.
Some states have enacted privacy statutes
which govern invasion of privacy claims. Massachusetts, Connecticut
and California are examples of states with invasion of privacy
statutes. (Although many states, such as New York, have statutes which
refer to "privacy," they deal only with rights of publicity,
rather than intrusions on privacy.)
Massachusetts' privacy statute is typical of the state privacy
statutory scheme. It prohibits "unreasonable, substantial or
serious interference with privacy." (AML GL c214 @1B) (In the
Boston Sheraton case the plaintiffs relied on this statute, as well as
the federal scheme.) Under the Massachusetts test, the interest in
obtaining and disseminating the information is balanced against the
nature and substantiality of the privacy intrusion.
Connecticut's privacy scheme, Conn. Gen. Stat. @31-48b, goes
several steps further, specifically regulating employer's rights to
use electronic surveillance. Connecticut employers may not use any
electronic surveillance device or system, including a CCTV (with or
without sound) to record or monitor employees in areas "designed
for [their] health or personal comfort," such as rest rooms
locker rooms or employee lounges.
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Unexpected Labor Ramifications.
Even if employers have met all of
the other requirements for a lawful video surveillance of its
employees, there are still two one more hurdles if the employer has
union-represented employees. The surveillance (I) may be a National
Labor Relations Act ("NLRA") violation if it records
protected concerted activities or (ii) may be considered a
"mandatory subject of bargaining," and therefore subject to
negotiation with the union.
Surveillance of protected concerted activities. While surveillance,
per se, isn't banned by the NLRA, surveillance intended to monitor
union activity or intimidate employees from engaging in union
activities violates the NLRA. (See Sunbelt Manufacturing Inc., 308
NLRB No. 110, 1992, 141 LRRM 1105; Stark Ceramics v. NLRB, Sixth Cir.
64, LRRM 2781 (although employer had justifiable reason for monitoring
employees); U.S. Steel Corp. V. NLRB, Third Cir. 1982, 110 LRRM 2902
(overruling an NLRB decision finding employer's photographing of
employee demonstration a per se violation of the NLRA; Lechmere Inc.,
295 NLRB No.15, 1989. 131 LRRM 1480)
In determining whether surveillance violates the NLRA, the NLRB
considers both the purpose of the surveillance and the locations being
surveyed. If the employer can justify its surveillance on legitimate
employer grounds, and it doesn't appear that the surveillance was
designed to intimidate employees from participating in protected
activities, the surveillance is likely to pass NLRB scrutiny.
Employers should note that if they create an impression that protected
activities are monitored, and employees are intimidated from
participating in protected activities, the NLRA may be violated, even
without actual surveillance.
Surveillance is subject to mandatory bargaining. Colgate-Palmolive
conducted hidden employee video surveillance of several areas in an
Indiana plant, including an exercise room and rest rooms. It also
conducted other employee video surveillance in plain view. Although
the hidden surveillance had been ongoing since 1990, it was not
discovered by employees until 1994. (Apparently, a union committeeman
had previously observed the hidden cameras, which became grounds for
Colgate-Palmolive's unsuccessful argument that the union had waived
its right to bargain over the video cameras.) The union filed a
grievance and Colgate-Palmolive promptly removed the cameras, but
insisted that it had an absolute right to monitor using hidden cameras
without union approval. The union sought a determination by the NLRB
that surveillance was not permitted without union consent. The NLRB
concurred with the union, and dismissed Colgate-Palmolive's argument
that the decision to conduct surveillance belonged exclusively to
management.
In this controversial decision, the NLRB noted that surveillance of
the restrooms and exercise room presented potential employee privacy
concerns and was therefore "absolutely germane" to the
working environment (one of the chief standards in determining whether
a topic was subject to bargaining). It also noted that since the video
surveillance was a management tool to investigate employee misconduct,
it wasn't fundamental to the basic direction of the enterprise, which
would exempt it from mandatory bargaining.
This decision has been broadly criticized. Among other things, the
NLRB was criticized for disregarding an earlier case decided by an
administrative law judge. (Quazite Corp., 315 NLRB 1068 (1994)) In the
previous case, hidden surveillance cameras were installed, without
union bargaining, in the restroom to investigate fire alarm tampering.
As a result of the videotaping, the person was caught tampering with
the alarm. The administrative law judge found that there was
justification for the surveillance, and the NLRB adopted the decision
without comment.
In trying to understand the Colgate-Palmolive decision, experts
have noted the NLRB's focus on the restroom and exercise room
surveillance, and what it may consider a invasion of privacy rights,
may be the key to understanding the Colgate-Palmolive decision. (In
the Quazite case, the fire alarm tampering actually occurred in the
restroom, and therefore the restroom had to be monitored, which in the
Colgate-Palmolive case, the restrooms and exercise room were merely
part of a general surveillance.) Given the increased scrutiny paid to
general surveillance of locations typically thought of as private,
employers should seriously balance the value of such surveillance
against the risks involved.
Employee Relations.
Whether they have a right to privacy under
employment circumstances or not, many employees find the intrusion
offensive, and surveillance of private areas, such as dressing rooms,
restrooms and locker rooms unacceptable. "The Privacy for
Consumers and Workers Act" was introduced in Congress several
years ago to address this concern. It required advance notification to
both employees and customers of electronic monitoring and prohibited
undisclosed monitoring of restroom, dressing room and locker room
facilities, except when the employer suspected illegal conduct.
Although never adopted, the proposed legislation points out the
need for informing employees, among others, of the intent to monitor
the workplace. Although the AMA survey indicated that only 25% of the
companies surveyed inform employees of their monitoring and
surveillance practices, smart employers are choosing to notify
employees in advance about the possibility that their activities may
be monitored. These notices are often contained in a written
electronic media policy or within the employees handbook. Given the
risks involved in not informing employees of monitoring and
surveillance activities, it's smart employee relations, smart risk
management and smart management.
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Parry
Aftab, Esq., 
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