Working World

It seems there are more and more video cameras around my workplace. Don’t employees have the right to go about unobserved at work any more, even in the break room? What about the right to privacy?

Technology has diminished privacy in the workplace in recent years. Employers observe employee and visitor behavior via video cameras, monitor phone calls via recordings or live review, and even keep track of employee keystrokes on company computers.

To establish a case for invasion of privacy, the employee must show that the employer penetrated some zone of physical or sensory privacy to which the employee had a reasonable expectation of privacy. Accordingly, whether there is a reasonable expectation of privacy depends on the circumstances.

Employer video surveillance in widely accessible areas, especially those open to the public, is permissible because there is little expectation of privacy. We expect to be observed in areas used by many people. Even semi-private areas, such as an employee break room, have been held to be fair game for video surveillance.

At the other end of the spectrum, bathrooms, locker rooms and other locations designated for changing clothes enjoy a greater expectation of privacy. In fact, California Labor Code Section 435 prohibits employers from making audio or video recordings of employees in these areas. A trucking company’s videotaping of the restrooms through a mirror to detect drug use was ruled impermissible, despite the strong public policy against drivers using drugs.

In a recent case, two female employees sued their employer for damages. The employer, a group home for abused children, placed a concealed video camera in the office they shared. The employer’s purpose was to determine who was accessing pornographic websites at night. Unaware of the camera, one of the employees occasionally lifted her shirt to show her coworker how her body was recovering from delivery of her child, and in doing so, exposed her stomach and breasts. The Court of Appeal held that the mere placement of the surveillance equipment in their private office, even without sound recording, violated the employees' right of privacy.

In short, while there is a limited zone of privacy remaining in the workplace, employers may legally videotape employees in most areas.

Amy Semmel is an attorney with the firm of Donfeld, Kelley & Rollman. Her practice emphasizes employment, trade secret and business tort law. The information discussed here is a general explanation of the law, and is not intended to serve as legal advice. Readers requiring legal advice regarding a specific situation should consult an employment attorney.