November 29, 2017
Many workplaces use video monitoring for security or inventory control. Most employees have cell phones with audio or video recording capabilities. Employers and employees often have questions about if or when video or audio recordings can occur. The following are some commonly encountered questions.
May a private employer use video cameras to monitor the workplace?
Generally, yes, an employer may use video cameras to monitor the workplace, but should pay careful attention to where and why video monitoring is occurring. Using video cameras, for example, to monitor entrances, exits, or similar locations can improve security. Similarly, video monitoring of inventory can help reduce shortages. Bottom line – video monitoring of the workplace can be helpful, but an employer should have a good business reason for where and when video cameras are used.
Should an employer have a policy addressing workplace monitoring or post notices?
It is normally best for an employer to establish a policy regarding where and when video monitoring occurs. Another best practice is posting signs notifying employees, guests, or customers about video monitoring. That is a good idea for at least two reasons. First, posting notices often serves as a deterrent against certain behavior, such as shoplifting. Second, by posting notices, visitors, customers or employees should not have a reasonable expectation of privacy while on an employer’s property.
Should some parts of the workplace be “off limits” to video monitoring?
Yes. Generally speaking, an employer would not want to use video monitoring in private places such as bathrooms, locker rooms, or dressing rooms. Monitoring in those areas could trigger a claim for invasion of privacy.
Should video monitoring include audio recording as well?
A: Normally not, at least not in South Carolina. S.C. Code Section 17-30-20 makes it a crime for someone, who is not part of the conversation, to record the conversation.
Are other laws relevant to workplace monitoring?
Yes. For example, the National Labor Relations Act is a federal law governing employees, employers, and unions. Among other things, the NLRA allows covered employees to engage in protected concerted action, such as going on strike. Generally speaking, the NLRA restricts workplace monitoring aimed at protected concerted activity by employees.
Can an employee record workplace conversations?
Sometimes, depending on the circumstances. For example, an employee could record a conversation with another person if that person consented. Recording by an employee would be subject to many of the same limitations as noted above, such as following company policy, respecting the right to privacy, and not recording third-party conversations.
Can an employee make video recordings of the workplace?
Sometimes, for the same reasons as noted above. There would also be significant limitation based on privacy, confidential information, trade secrets, restricted areas, etc.
Workplace monitoring using audio or video recordings continues to become more common, but employers and employees must carefully consider the related legal restrictions and risks.
Our Insights are published as a service to clients and friends. They are intended to be informational and do not constitute legal advice regarding any specific situation.