Workplace Surveillance: Balancing the Employee’s Right to Privacy With the Employer’s Right to Know

June 7, 2011Articles
As seen in the West Virginia Chamber HR Journal

Employers may wish to use surveillance in the workplace for a variety of beneficial reasons, including employee safety, prevention of theft, supervision of employees, and reducing the potential for liability. There are, of course, negative aspects of surveillance as well. Employees may feel like they are constantly being watched, that the employer does not trust them, and that the surveillance invades their personal lives. This may lead to feelings of resentment and increased stress. Moreover, electronic surveillance should not be used as a substitute for monitoring by management. Rather, technology should be used as a supplement to good old-fashioned supervising.

Common methods of surveillance include monitoring employees’ activities via video, audio, and computer. Different laws apply to each of these areas. And, as an initial matter, it is important to note that, when discussing surveillance of employees, there is a difference between the rights of public versus private employees. Public employees have greater constitutional rights under the Fourth Amendment. The same general rules typically apply, but a public employer will likely reach the outer bounds of permissible surveillance first.

As it relates to video surveillance, there is no general prohibition in West Virginia against monitoring common areas at a place of employment. Video surveillance is effective to reduce theft or sabotage, and often, is implemented to track and monitor job performance. Employers are prohibited, however, from electronically monitoring employee activities in areas designated for their health or personal comfort, including such areas as restrooms and lockerrooms.1 Moreover, employers should, in the absence of consent or full written notice posted at the location, refrain from video surveillance of interior offices and other areas where employees could reasonably expect privacy. Video cameras that also capture audio recordings may be subject to laws relating to audio recording, which is discussed below. In addition, for unionized settings, the National Labor Relations Board has held that the installation of surveillance cameras is a mandatory subject of bargaining and that an employer is required to bargain with a union concerning the installation and use of cameras, the general areas in which they may be placed, and any discipline that may be implemented based on observations from video surveillance. And, of course, as noted above, public employees have greater constitutional rights, including stronger protections against unlawful searches and seizures.

Audio surveillance is more dangerous. Wiretapping is generally prohibited by statute.2 Thus, an employer should not utilize microphones to conduct audio surveillance. In Bowyer v. HI-LAD, Inc., 609 S.E.2d 895 (W.Va. 2004), the plaintiff, a hotel employee, sued the owner of the hotel, alleging that the hotel had subjected him to illegal audio surveillance and monitoring in violation of the West Virginia Wiretapping and Electronic Surveillance Act. The Supreme Court of Appeals upheld an award of $100,000 in compensatory damages to the plaintiff, even though there was no direct evidence that the defendant had intercepted the plaintiff’s conversation within the hotel. At trial, the plaintiff introduced into evidence a videotape which he had obtained from the hotel’s surveillance monitoring equipment which contained over four hours of both video and audio interceptions of hotel employees and members of the public speaking near the hotel’s front desk and bar. Thus, the court ruled there was sufficient circumstantial evidence that the jury could conclude that the defendant intercepted the communications of the plaintiff as well.

In addition, the court also upheld the jury’s award of $400,000 in punitive damages. On multiple occasions, an assistant manager of the hotel told the plaintiff that there were microphones hidden in the hotel, but that the microphones were disconnected. According to the court, the jury could rightly conclude that the defendant had, for at least two years, secretly monitored verbal communications of employees and hotel guests, had attempted to conceal its actions, and had made no effort to make amends for its transgressions.

Note, however, that an individual conversation may be recorded where at least one party to the conversation has given consent for the recording and the recording is not for use in committing a criminal act.3 Thus, the person recording the conversation can be the one who gives the consent.

Employers will unquestionably want to retain the right to monitor employee communications on company computers, smartphones, and other electronic devices. Such monitoring helps police improper use of computer resources, including for purposes of discrimination and/or harassment, as well as protection against employees visiting inappropriate websites, such as those with adult content or that distribute viruses and other malware (software designed to harm computers). Most employers use software to block content on some websites. Software can also be implemented to track keystrokes, content, and time spent at the employee’s computer. Telephone numbers dialed from an extension and their duration can be registered, text messages can also be tracked, and transcripts of those messages can be obtained.

It is important, however, that employers exercise caution in their monitoring to ensure that they are not actually discriminating against certain employees protected by law. For example, employers cannot permit employees to solicit each other via email (for cookie sales, charitable contributions, etc.) while at the same time banning employees from discussing unionization via email.

Employers who wish to monitor activities on company-owned computers, smartphones, and other devices should have in place a clear written policy explaining to employees that they have no expectation of privacy in their use of these devices and that the employer may monitor their activities, including e-mail content and internet usage, from time to time. It is also a good idea to have employees sign an “acknowledgment” that they have received and read such a policy.

As it relates to employee-owned computers, employers should be aware of the West Virginia Computer Crime and Abuse Act, which prohibits any person from knowingly, willfully, and without authorization accessing a computer network to examine any employment, salary, credit or any other financial or personal information relating to any other person.4 In addition to criminal violations, this Act also provides a private right of action and expressly permits the recovery of punitive damages.5

In sum, workplace surveillance is an area in which employers must work to strike a balance between their right to run a business productively and efficiently and their employees’ rights to privacy. Familiarity with the various laws that impact workplace surveillance, and a conscientious approach to enacting easy-to-understand policies, will go a long way in helping to strike that balance.

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(1) W.Va. Code § 21-3-20. 
(2) W.Va. Code § 62-1D-3. 
(3) W.Va. Code § 62-1D-3(c)(2).
(4) W.Va. Code § 61-3C-12. 
(5) W.Va. Code § 61-3C-16.