An Employer’s Guide – ShoeMoney

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China now has the largest surveillance system in the world. The government owns and operates 170 million CCTV cameras. They use artificial intelligence and facial recognition to keep track of all the cameras and all the feeds.

As camera and sensor technology shrinks, hiding cameras has become much easier. There once was a time when this would have bothered us immensely. Do you remember Google Glass?

Now people have the same and better cameras in their phones and in their watches. Nobody cares.

Where is the line? Who can record who when?

If you’re an employer, the line gets fuzzy. You want to keep your business safe, but you don’t want to break the law or get sued by your employees.

Here’s where the law draws the line.

Reasonable Expectation of Privacy

Where do you expect privacy? Your home, your car? How about the restroom at work?

Most state laws dealing with hidden recording devices (read more now) only regulate places like restrooms and break rooms. These are places with an expected level of privacy.

But when the courts get involved, often the story is slightly different. The courts are concerned with facts and what’s best for society as a whole (at least they should be).

In Vega-Rodriquez V. Purto Rico Telephone Company, the court examined a reasonable expectation of privacy for employees. This case upheld the right of employers to surveil their employees in normal operating areas.

Even if employees expect a reasonable amount of privacy in their cubicles in an open workspace, they don’t have it. The court compared the camera to the naked eye. If an employer can walk around the corner and see what you’re doing, they can record what you’re doing when they’re not there.

It is an unreasonable expectation of privacy to expect privacy in a “public” place. Thus, even if using hidden cameras in a break room, the employer might win if sued.

If the employee, however, works for a government office, the court would have to consider the Fourth Amendment of the U.S. Constitution more seriously. They must protect U.S. Citizens against unreasonable search and seizure by government.

Cowles Vs. State

The Alaska Supreme Court ruled that a university’s box office was sufficiently public for an employer to film employees there. Why? Because the public can see into the box office from the outside.

Would you change your clothes in a box office? Unless you’re an exhibitionist, you probably wouldn’t. Why would you expect privacy in a fishbowl?

Thus, any space that’s partially visible to the public can be filmed by employers.

On top of that, the court ruled that where employees handle large amounts of cash was open to surveillance. Because there is an expectation of security that trumps any expectation of privacy, employees should not expect privacy before large amounts of cash (unless it’s their own cash in their own home and then they could do whatever they want with it without fear of the boss finding out).

Nelson V. Salem State College

Going back to the expectation of privacy in cubicles, someone got caught with their pants down in their cubicle one night. She sued her employer for filming her with the security cameras. She lost.

The court found that Gail Nelson shouldn’t have expected privacy in her cubicle even after hours. It was the employer’s workspace and there was no door. The employer could have quietly come in, walked through the premises and embarrassingly found Gail in a state of undress.

Thus the Massachusetts Supreme Court ruled in her employers’ favor.

What Then Is Private in the Workplace?

While cubicles aren’t private, is there any place in an office that is? It seems like there would be. Could an employee spy on an employee in their office even if it features a door with a lock?

In United States V. Taketa, the Ninth Circuit Court ruled that employees do have a reasonable expectation of privacy in their closed-off offices. The DEA surveilled the Nevada Bureau of investigations by placing a hidden camera inside a private office.

While this wasn’t an employer using hidden cameras, it still applies to employers. Why? Because it makes an office “private.” If it had been a space where DEA agents often visited the bureau such as an open office space or a foyer, then this case would have no bearing on employer privacy.

Think about it this way. If someone has to knock when the door is closed, it’s private. Thus, if you’re given an office with a key, you should feel free to lock it and change or do whatever you do during your break (no judgment) without your boss or any other employee seeing you do it.

If you’re an employer, don’t put hidden cameras in your employee’s lockable offices. It doesn’t matter if you think they’re conspiring against you. You will inevitably record something private and if they find out, you’re legal toast.

What About Bathrooms and Locker Rooms?

You would think that bathrooms and locker rooms were common sense “off-limits” areas for employee surveillance. But some employees in the past didn’t think there was a reasonable expectation of privacy even in a locker room.

In Clement et al, vs. Sheraton-Boston Corp a hotel installed cameras in the hotel employee locker room. They suspected someone was conducting drug deals in the locker room.

While the cameras didn’t spy on the showers or the toilets, it still caught some employees in a state of undress. The employees found out about the cameras and sued.

While this case went to settlement, the court had ruled against the hotel’s motion for summary judgment.

Later, in Doe v. B.P.S. Guard Services, Inc. the Eight Circuit Court ruled against a fashion show who installed cameras in a locker room. The fashion models won because the area was enclosed and the models had a legitimate expectation of privacy.

Now, an open locker area or partially enclosed area does not fall under this expectation of privacy. If other employees walk through the area and there are no doors or gendered exclusions to the area, then employers are free to record the area.

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