Use employee video surveillance with caution

Video surveillance of employees could bring on lawsuit
Employers using video surveillance to monitor their employees’ activities in the workplace need to proceed with caution, according to a Milwaukee labor and employment attorney.
Current estimates are that nearly one quarter of the nation’s work force is currently subject to video surveillance.
“Under the Electronic Communications and Privacy Act, the federal law which regulates the interception of electronic and oral communication, an employee may sue his or her employer for intercepting any wire or oral communication by that employee,” says Timothy L. Stewart, a labor and employment attorney at Davis & Kuelthau law firm.
Some Courts have held that an employer may be able to avoid liability under that law by using video surveillance systems that do not include audio recording devices, Stewart said.
Built-in exceptions to liability under the law include:
? The prior consent exception. If one of the parties to the conversation recorded has consented to the recording of the conversation, then there is no liability for interception or recording of the conversation.
? Reasonable expectation of non-interception exception (for oral communications). In order to be able to sue his employer, the employee must be able to show that he had a reasonable expectation of non-interception. The best way for an employer to defeat this expectation is to give a blanket notice to its employees that they are being monitored. The more specific the notice is about the monitoring, the more likely an employee would not have a reasonable expectation of non-interception. For example, the notice might contain the exact location of all recording devices.
“Public employers may be at greater risk when using video surveillance equipment because of the constitutional implications involved,” said Stewart.
“Generally, the public employer is prohibited from violating its employees “reasonable expectation of privacy,” which is mandated by the Fourth Amendment of the U.S. Constitution.”
A 1997 federal court case held, however, that the use of soundless video surveillance equipment by a quasi-public corporation (a telephone company) to monitor the workplace did not infringe on its employees’rights.
Whether the use of video surveillance equipment is a mandatory subject of bargaining in a unionized workplace remains in question. The National Labor Relations Board recently held that the use of hidden video surveillance equipment was indeed a mandatory subject of bargaining. However, the federal Court of Appeals with jurisdiction over Wisconsin held in 1993 that electronic surveillance was a management right.
Because of the inconsistency of arbitration decisions, it is difficult to predict whether video surveillance is a mandatory subject of bargaining. However, it seems clear that concealed video surveillance without notice to employees is more susceptible to abuse by the employer and therefore, may give an arbitrator or court more reason to rule that it should be a subject of bargaining.
April 1998 Small Business Times, Milwaukee

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